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Defamation Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
In November 2004, the Attorneys General of the States and Territories agreed
to support the enactment in their respective jurisdictions of uniform model
provisions in relation to the law of defamation (the model provisions).
At the time of the agreement, each State and Territory had different laws
governing the tort of defamation. Tasmania and Queensland codified their
civil law of defamation. The other jurisdictions retained the common law,
but supplemented or altered it to varying degrees by enacting differing
statutory provisions. The States and Territories also had different laws
governing the offence of criminal defamation.
In Victoria defamation law has predominantly been governed by the common
law and in part by the Wrongs Act 1958. The Summary of Existing
Defamation Laws at the end of this Explanatory Memorandum summarises
the position in each jurisdiction in relation to the tort of defamation and
criminal defamation.
The object of this Bill is to enact the model provisions agreed to by the
Attorneys General of the States and Territories. The principal features of the
model provisions are--
(a) the retention (with some modifications) of the common law of
defamation to determine civil liability for defamation; and
(b) the abolition of the distinction at common law between slander and
libel; and
(c) the creation of a statutory cap on the amount of damages for non-
economic loss that may be awarded in civil proceedings for
defamation; and
(d) the enactment of provisions to facilitate the resolution of civil
disputes about the publication of defamatory matter without
litigation; and
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551350 BILL LA INTRODUCTION 6/9/2005
(e) the delineation of the respective roles of juries and judicial officers
in the jury trial of civil proceedings for defamation by limiting the
role of juries to the determination of whether a person has been
defamed and leaving the award of damages to judicial officers; and
(f) the abolition of exemplary and punitive damages in civil
proceedings for defamation; and
(g) the establishment of truth alone as a defence to a civil action for
defamation; and
(h) the imposition of a limitation period for civil actions for defamation
of 1 year, subject to an extension (in limited circumstances) to a
period of up to 3 years following publication.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the proposed Act.
Clause 2 provides that the proposed Act commences on 1 January 2006.
Clause 3 sets out the objects of the proposed Act.
Clause 4 defines certain terms used in the proposed Act. In particular, the
following terms are defined:
The general law is defined to mean the common law and equity.
The term matter is defined to include--
(a) an article, report, advertisement or other thing
communicated by means of a newspaper, magazine or
other periodical; and
(b) a program, report, advertisement or other thing
communicated by means of television, radio, the Internet
or any other form of electronic communication; and
(c) a letter, note or other writing; and
(d) a picture, gesture or oral utterance; and
(e) any other thing by means of which something may be
communicated to a person.
Clause 5 provides that the proposed Act binds the Crown in all its
capacities.
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PART 2--GENERAL PRINCIPLES
Division 1--Defamation and the General Law
Clause 6 provides that the proposed Act does not affect the operation of
the general law in relation to the tort of defamation except to the
extent that the proposed Act provides otherwise (whether
expressly or by necessary implication).
The proposed Act does not seek to define the circumstances in
which a person has a cause of action for defamation. Rather, the
proposed Act operates by reference to the elements of the tort of
defamation at general law. Accordingly, if a plaintiff does not
have a cause of action for defamation at general law in relation to
the publication of matter by the defendant, the plaintiff will not
(subject to the modification of the general law effected by
proposed section 7) have a cause of action for the purposes of the
proposed Act.
At general law, a plaintiff has a cause of action for defamation
against a defendant if the defendant publishes defamatory
accusations or charges (referred to conventionally as
imputations) about the plaintiff to at least one other person
(other than the defendant or his or her spouse). The courts have
formulated the test for determining what is defamatory in various
ways. Examples of these formulations include (but are not
limited to) the following--
(a) "[Words that] tend to lower the plaintiff in the estimation
of right-thinking members of society generally".
See Sim v Stretch [1936] 2 All ER 1237 at 1240 per
Lord Atkin;
(b) "Whether the alleged libel is established depends upon the
understanding of the hypothetical referees who are taken
to have a uniform view of the meaning of the language
used, and upon the standards, moral or social, by which
they evaluate the imputation they understand to have been
made. They are taken to share a moral or social standard
by which to judge the defamatory character of that
imputation". See Reader's Digest Services Pty Ltd v
Lamb (1982) 150 CLR 500 at 506 per Brennan J;
(c) "In order that one person may establish against another a
civil cause of action [for defamation], it is essential that
he should prove (1) that a statement or other
representation has been made ... of a kind likely to lead
ordinary decent folk to think the less of the person about
whom it is made; (2) that it was about him that it was
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made; and (3) that the other has published it to at least one
third party (who is not the husband or wife of the other)".
See Consolidated Trust Co Ltd v Browne (1948) 49 SR
(NSW) 86 at 88 per Jordan CJ;
(d) "At common law, in general, an imputation, to be
defamatory of the plaintiff, must be disparaging of him ...
I say that this is "in general" the position, as the common
law also recognizes as defamatory an imputation which,
although not disparaging, tends to make other persons
"shun or avoid" the plaintiff ... as well as an imputation
that displays the plaintiff in a ridiculous light,
notwithstanding the absence of any moral blame on his
part". See Boyd v Mirror Newspapers Ltd [1980] 2
NSWLR 449 at 452-453 per Hunt J.
Clause 7 abolishes the general law distinction between libel and slander.
In Victoria, libel is the publication of defamatory matter in a
written or other permanent form while slander is the publication
of defamatory matter in a form that is temporary and merely
audible. If a matter is libellous, the plaintiff does not need to
prove that he or she sustained material loss (or special damage)
in order for the matter to be actionable. However, if a matter is
slanderous, the plaintiff must usually prove special damage in
order for the matter to be actionable.
The abolition of this general law distinction means that all
publications of defamatory matter are actionable without proof of
special damage.
The distinction has already been abolished in most Australian
jurisdictions under existing law. The only exceptions, apart from
Victoria, are South Australia and Western Australia.
Division 2--Causes of Action for Defamation
Clause 8 provides that a person has a single cause of action for defamation
in relation to the publication of defamatory matter even if more
than one defamatory imputation about the person is carried by the
matter.
The proposed section reflects the position at general law that the
publication of defamatory matter is the foundation of a civil
action for defamation and reflects the existing law in Victoria and
in all of the other States and Territories other than New South
Wales. Under the existing law of New South Wales, each
defamatory imputation carried by a matter founds a separate
cause of action.
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Clause 9 provides that generally a corporation does not have a cause of
action for defamation of the corporation. This clause amends the
general law in Victoria which allows a private or trading
corporation an action in defamation if the corporation can
establish the capacity of the defamatory matter to injure the
corporation's trading reputation.
However, a corporation will still have a cause of action for
defamation if, at the time of the publication of the defamatory
matter--
(a) the objects for which the corporation was formed did not
include obtaining financial gain for its members or
corporators; or
(b) the corporation employed fewer than 10 persons and was
not related to another corporation--
and the corporation was not a public body.
The proposed section will not preclude any individual associated
with a corporation from suing for defamation in relation to the
publication of matter about the individual that also defames the
corporation.
New South Wales is currently the only jurisdiction to have
precluded most (but not all) corporations from suing for
defamation under its existing law.
Clause 10 provides that no civil action for defamation may be asserted,
continued or enforced by a person in relation to the publication of
defamatory matter about a deceased person (whether or not
published before or after the person's death). The proposed
section also prevents the assertion, continuation or enforcement
of a civil cause of action for defamation against a publisher of
defamatory matter who is deceased.
With the exception of Tasmania, the existing laws of the States
and Territories preclude a civil action for defamation in relation
to a deceased person or against a deceased person. The existing
law reflects the position at general law.
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Division 3--Choice of Law
Clause 11 provides for choice of law rules where a civil cause of action is
brought in a court of this State in relation to the publication of
defamatory matter that occurred wholly or partly in an Australian
jurisdictional area. An Australian jurisdictional area is defined
to mean--
(a) the geographical area of Australia that lies within the
territorial limits of a particular State (including its coastal
waters), but not including any territory, place or other
area referred to in paragraph (c); or
(b) the geographical area of Australia that lies within the
territorial limits of a particular Territory (including its
coastal waters), but not including any territory, place or
other area referred to in paragraph (c); or
(c) any territory, place or other geographical area of Australia
over which the Commonwealth has legislative
competence but over which no State or Territory has
legislative competence.
Examples of areas over which the Commonwealth, but not a
State or Territory, has legislative competence include places in
relation to which the Commonwealth has exclusive power to
make laws under section 52 (i) of the Commonwealth
Constitution and the external Territories of the Commonwealth.
The proposed section creates 2 choice of law rules.
The first choice of law rule applies where a matter is published
wholly within a single Australian jurisdictional area. The choice
of law rule in that case will require a court of this State to apply
the substantive law applicable in the Australian jurisdictional
area in which the matter was published.
The second choice of law rule applies if the same, or
substantially the same, matter is published in more than one
Australian jurisdictional area by a particular person to 2 or more
persons. The choice of law rule in that case will require a court
of this State to apply the substantive law applicable in the
Australian jurisdictional area with which the harm occasioned
by the publication as a whole has its closest connection.
In determining which area has the closest connection with the
harm, the court may take into account any matter it considers
relevant, including--
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(a) the place at the time of publication where the plaintiff was
ordinarily resident or, in the case of a corporation that
may assert a cause of action for defamation, the place
where the corporation had its principal place of business
at that time; and
(b) the extent of publication in each relevant Australian
jurisdictional area; and
(c) the extent of harm sustained by the plaintiff in each
relevant Australian jurisdictional area.
The second choice of law rule is based on the recommendation
made by the Australian Law Reform Commission in its report
entitled Unfair Publication: Defamation and privacy (1979,
Report No 11) at pages 190-191. See also Samuels JA in ABC v
Waterhouse (1991) 25 NSWLR 519 at 536-537. As indicated in
that report, the Australian jurisdictional area with which the tort
will have its closest connection will generally be where the
plaintiff is resident if the plaintiff is a natural person resident in
Australia. In the case of a corporation, it will generally be where
the corporation has its principal place of business.
In the event that each State and Territory enacts the model
provisions, there is still scope for the application of these choice
of law rules if a provision other than the enacted model
provisions limits or excludes civil liability for defamation in a
particular jurisdiction. For instance, a common statutory
provision in State and Territory law is one that protects a public
official or public authority of the State or Territory from civil
liability for actions taken in a good faith in the exercise of
statutory functions. These provisions are of general application
and therefore include, but are not limited to, civil liability for
defamation.
The choice of law rules enacted by the proposed section apply
only the substantive law of the jurisdiction concerned. In John
Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 at 544-545,
the High Court held that rules which are directed to governing or
regulating the mode or conduct of court proceedings are
procedural and all other provisions or rules are to be classified as
substantive. For instance, a law relating to whether proceedings
should be tried by jury would be procedural because the law
relates to regulating the mode or conduct of court proceedings.
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Under existing law, choice of law for defamation matters is
largely determined by the general law. Under the general law,
the law of the place in which a defamatory matter is published
must be applied to determine liability for that publication. If the
matter is published in more than one place, then there is a
separate cause of action for each publication. In that
circumstance, different laws may need to be applied for each
different publication depending on the place of publication.
PART 3--RESOLUTION OF CIVIL DISPUTES WITHOUT
LITIGATION
Division 1--Offers to Make Amends
The Division sets out provisions dealing with offers to make amends for the
publication of matter that is, or may be, defamatory. The provisions may be
used before, or as an alternative to, litigation.
New South Wales and the Australian Capital Territory make similar
provision for offers to make amends under their existing laws. The other
Australian jurisdictions, including Victoria, have provisions in their rules of
court and other civil procedure legislation that provide for the making of
offers of compromise or payments into court. However, these provisions
tend to be available only once litigation has commenced.
Clause 12 provides that the Division applies if a person (the publisher)
publishes matter (the matter in question) that is, or may
be, defamatory of another person (the aggrieved person).
The proposed section also makes it clear that the Division may
be used instead of the provisions of any rules of court or any
other law in relation to payment into court or offers of
compromise. The Division will also not prevent the making or
acceptance of settlement offers.
Clause 13 enables a publisher to make an offer to make amends to an
aggrieved person.
Clause 14 provides that the offer cannot be made if 28 days have elapsed
since the publisher has been given a concerns notice by the
aggrieved person that the matter in question is or may be
defamatory or if a defence in an action for defamation brought by
the aggrieved person has been served. The proposed section also
enables a publisher to seek further particulars from the aggrieved
person if the concerns notice does not particularise the
defamatory imputations carried by the matter in question of
which the aggrieved person complains.
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Clause 15 specifies what an offer to make amends must or may contain.
It also confers certain powers on a court in relation to the
enforcement of an offer to make amends that is accepted by an
aggrieved person.
Clause 16 enables a publisher to withdraw an offer to make amends. It also
enables a publisher to make a renewed offer to make amends
after the expiry of the periods referred to in proposed section 14
if the renewed offer is a genuine attempt by the publisher to
address matters of concern raised by the aggrieved person about
an earlier offer and is made within 14 days after the earlier offer
is withdrawn (or within an agreed period).
Clause 17 provides that if the publisher carries out the terms of an accepted
offer to make amends (including paying any compensation under
the offer), the aggrieved person cannot assert, continue or enforce
an action for defamation against the publisher in relation to the
matter in question even if the offer was limited to any particular
defamatory imputations.
Clause 18 provides that it is a defence to an action for defamation against
the publisher if the publisher made an offer of amends that was
not accepted and the offer was made as soon as practicable after
the publisher became aware that the matter in question is or may
be defamatory, the publisher was ready and willing to carry out
the terms of the offer and the offer was reasonable in the
circumstances.
Clause 19 provides that (subject to some exceptions) evidence of any
statement or admission made in connection with the making or
acceptance of an offer to make amends is not admissible as
evidence in any criminal or civil proceedings.
Division 2--Apologies
Clause 20 provides that an apology by or on behalf of a person will not
constitute an admission of liability, and will not be relevant to the
determination of fault or liability, in connection with any
defamatory matter published by the person.
A number of States and Territories make provision along these
lines under their existing laws. While Victoria does not have a
similar provision for defamation claims, a broadly similar
provision exists for claims relating to death and personal injury
under Part IIC of the Wrongs Act 1958.
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PART 4--LITIGATION OF CIVIL DISPUTES
Division 1--General
Clause 21 enables a plaintiff or defendant in defamation proceedings in the
Supreme Court or the County Court to elect to have the
proceedings determined by a jury unless the court orders
otherwise. The grounds on which a court may order otherwise
include (but are not limited to)--
(a) the trial requires a prolonged examination of records; or
(b) the trial involves any technical, scientific or other issue
that cannot be conveniently considered and resolved by a
jury.
There is a miscellany of different provisions under the existing
laws of the States and Territories about the use of juries in
defamation proceedings. The proposed section, along with
proposed section 22, seeks to enact uniform provisions in relation
to the use of juries for those States and Territories who will
continue to use juries in defamation proceedings.
Clause 22 specifies the respective roles of juries and judicial officers where
defamation proceedings are tried by jury.
The proposed section provides that the jury is to determine
whether the defendant has published defamatory matter and, if
so, whether any defence raised by the defendant has been
established. However, the judicial officer and not the jury is to
determine the amount of damages (if any) that should be awarded
in successful proceedings.
The proposed section alters the position at general law in Victoria
by withdrawing from the jury the determination of damages.
Under the existing law of New South Wales, juries cannot
determine defences or damages. However, the proposed section
makes it clear that it does not require or permit a jury to
determine any issue that, at general law, is an issue to be
determined by the judicial officer. For example, at general law
the judicial officer and not the jury determines whether a matter
has been published on an occasion of absolute or qualified
privilege for the purposes of a defence. See Guise v Kouvelis
(1947) 74 CLR 102 at 109, 113 and 117 and The Herald
&Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1 at 11.28
and 101.
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Clause 23 provides that the leave of the court is required for further
proceedings for defamation to be brought against the same person
even if the earlier proceedings were brought outside of this State.
New South Wales makes similar provision under its existing law.
Division 2--Defences
Clause 24 provides that a defence under Division 2 is additional to any
other defence or exclusion of liability available to the defendant
apart from the proposed Act (including under the general law)
and does not of itself vitiate, limit or abrogate any other defence
or exclusion or liability. The clause notes that statutory
protections available under Victorian legislation, such as the
provision of absolute privilege under section 19 of the
Constitution Act 1975, continue to operate in addition to
any defence that may be available under the proposed Act.
The proposed section also provides that the general law applies
to determine whether a publication of defamatory matter was
actuated by malice. At general law, a publication of matter is
actuated by malice if it is published for a purpose or with a
motive that is foreign to the occasion that gives rise to the
defence at issue. See Robert v Bass (2002) 212 CLR 1 at 30-33.
Clause 25 provides that it is a defence to the publication of defamatory
matter if the defendant proves that the defamatory imputations
carried by the matter of which the plaintiff complains are
substantially true. The term substantially true is defined in
proposed section 4 to mean true in substance or not materially
different from the truth.
The defence reflects the defence of justification at general law in
Victoria, South Australia, Western Australia and the Northern
Territory where truth alone is a defence to the publication of
defamatory matter.
Under existing law, some States and Territories require a
defendant to prove more than truth in order to raise the defence
of justification. In New South Wales, the defendant must prove
both that the matter was true and that it was in the public interest
for it to be published. In Queensland, Tasmania and the
Australian Capital Territory, the defendant must prove that the
publication of the matter was for the public benefit.
11
Clause 26 provides for a defence of contextual truth. The defence deals
with the case where there are a number of defamatory
imputations carried by a matter but the plaintiff has chosen to
proceed with one or more but not all of them. In that
circumstance, the defendant may have a defence of contextual
truth if the defendant proves--
(a) the matter carried, in addition to the defamatory
imputations of which the plaintiff complains, one or more
other imputations (contextual imputations) that are
substantially true; and
(b) the defamatory imputations do not further harm the
reputation of the plaintiff because of the substantial truth
of the contextual imputations.
There is a defence of contextual truth under the existing law of
New South Wales.
At general law, the truth of each defamatory imputation carried
by the matter published that is pleaded by the plaintiff must be
proved to make out the defence of justification unless it can be
established that the imputations were not separate and distinct
but, as a whole, carried a "common sting". In that case, the
defence of justification is made out if the defendant can show that
the "common sting" is true. See Polly Peck (Holdings) Plc v
Trelfold [1986] QB 1000 at 1032. The defence of contextual
truth created by the proposed Act, unlike the general law, will
apply even if the contextual imputations are separate and distinct
from the defamatory imputations of which the plaintiff
complains.
Clause 27 provides that it is a defence to the publication of defamatory
matter if the defendant proves that the matter was published on
an occasion of absolute privilege.
The proposed section lists, on a non-exhaustive basis, certain
publications of matter that are published on occasions of absolute
privilege. The publications of matter listed include--
(a) the publication of matter in the course of the proceedings
of a parliamentary body of any country; and
(b) the publication of matter in the course of the proceedings
of an Australian court or Australian tribunal; and
(c) the publication of matter on an occasion that, if published
in another Australian jurisdiction, would be an occasion
of absolute privilege in that jurisdiction under a provision
of a law of the jurisdiction corresponding to the proposed
section; and
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(d) the publication of matter by persons or bodies in any
circumstances specified in Schedule 1 (Additional
publications to which absolute privilege applies).
The defence of absolute privilege at general law extends to
certain parliamentary and judicial proceedings and certain
ministerial communications. The privilege is described as being
absolute because it cannot be defeated even if the matter was
untrue or was published maliciously. Absolute privilege is also
conferred in Victoria under certain Victorian legislation including
the Constitution Act 1975, the Whistleblowers Protection Act
2001 and the Ombudsman Act 1973. Those statutory
protections continue to apply notwithstanding this provision.
The proposed section extends the defence of absolute privilege to
the publication of matter that would be subject to absolute
privilege under the corresponding law of another Australian
jurisdiction. This provision ensures that if a State or Territory
includes a publication in its equivalent of Schedule 1, then that
publication will also have the benefit of absolute privilege in all
other States and Territories that enact the model provisions.
Clause 28 provides that it is a defence to the publication of defamatory
matter if the defendant proves that the matter was contained in--
(a) a public document or a fair copy of a public document; or
(b) a fair summary of, or a fair extract from, a public
document.
The proposed section provides that the defence is defeated if, and
only if, the plaintiff proves that the defamatory matter was not
published honestly for the information of the public or the
advancement of education.
The proposed section defines public document to mean--
(a) any report or paper published by a parliamentary body, or
a record of votes, debates or other proceedings relating to
a parliamentary body published by or under the authority
of the body or any law; or
(b) any judgment, order or other determination of a court or
arbitral tribunal of any country in civil proceedings and
includes--
(i) any record of the court or tribunal relating to the
judgment, order or determination or to its
enforcement or satisfaction; and
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(ii) any report of the court or tribunal about its
judgment, order or determination and the reasons
for its judgment, order or determination; or
(c) any report or other document that under the law of any
country--
(i) is authorised to be published; or
(ii) is required to be presented or submitted to, tabled
in, or laid before, a parliamentary body; or
(d) any document issued by the government (including a local
government) of a country, or by an officer, employee or
agency of the government, for the information of the
public; or
(e) any record or document open to inspection by the public
that is kept--
(i) by an Australian jurisdiction; or
(ii) by a statutory authority of an Australian
jurisdiction; or
(iii) by an Australian court; or
(iv) under legislation of an Australian jurisdiction; or
(f) any other document issued, kept or published by a person,
body or organisation of another Australian jurisdiction
that is treated in that jurisdiction as a public document
under a provision of a law of the jurisdiction
corresponding to the proposed section; or
(g) any document of a kind specified in Schedule 2
(Additional kinds of public documents).
The existing laws of a number of States and Territories make
provision for a statutory defence along these lines. However, the
scope of the statutory defences differs in each jurisdiction.
The proposed section includes a comprehensive list of public
documents within its ambit. The provision also ensures that if a
State or Territory includes a class of document in its equivalent
of Schedule 2, then those documents will also have the benefit of
this defence in all other States and Territories that enact the
model provisions.
14
Clause 29 provides that it is a defence to the publication of defamatory
matter if the defendant proves that the matter was, or was
contained in, a fair report of any proceedings of public concern.
The proposed section also provides that it is a defence to the
publication of defamatory matter if the defendant proves that--
(a) the matter was, or was contained in, an earlier published
report of proceedings of public concern; and
(b) the matter was, or was contained in, a fair copy of, a fair
summary of, or a fair extract from, the earlier published
report; and
(c) the defendant had no knowledge that would reasonably
make the defendant aware that the earlier published report
was not fair.
The proposed section provides that the defence is defeated if, and
only if, the plaintiff proves that the defamatory matter was not
published honestly for the information of the public or the
advancement of education.
The proposed section defines proceedings of public concern to
mean--
(a) any proceedings in public of a parliamentary body; or
(b) any proceedings in public of an international organisation
of any countries or of the governments of any countries;
or
(c) any proceedings in public of an international conference
at which the governments of any countries are
represented; or
(d) any proceedings in public of--
(i) the International Court of Justice, or any other
judicial or arbitral tribunal, for the decision of any
matter in dispute between nations; or
(ii) any other international judicial or arbitral tribunal;
or
(e) any proceedings in public of a court or arbitral tribunal of
any country; or
(f) any proceedings in public of an inquiry held under the law
of any country or under the authority of the government
of any country; or
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(g) any proceedings in public of a local government body of
any Australian jurisdiction; or
(h) certain proceedings of a learned society or of a committee
or governing body of such a society; or
(i) certain proceedings of a sport or recreation association or
of a committee or governing body of such an association;
or
(j) certain proceedings of a trade association or of a
committee or governing body of such an association; or
(k) any proceedings of a public meeting (with or without
restriction on the people attending) of shareholders of a
public company under the Corporations Act held
anywhere in Australia; or
(l) any proceedings of a public meeting (with or without
restriction on the people attending) held anywhere in
Australia if the proceedings relate to a matter of public
interest, including the advocacy or candidature of a
person for public office; or
(m) any proceedings of an ombudsman of any country if the
proceedings relate to a report of the ombudsman; or
(n) any proceedings in public of a law reform body of any
country; or
(o) any other proceedings conducted by, or proceedings of, a
person, body or organisation of another Australian
jurisdiction that are treated in that jurisdiction as
proceedings of public concern under a provision of a law
of the jurisdiction corresponding to the proposed section;
or
(p) any proceedings of a kind specified in Schedule 3
(Additional proceedings of public concern).
At general law, fair and accurate reports of proceedings of
certain persons and bodies are subject to qualified privilege.
For example, the general law defence extends to proceedings in
parliament and judicial proceedings conducted in open court.
As the defence at common law is a defence of qualified privilege,
it can be defeated by proof that the publication of the defamatory
matter was actuated by malice.
16
The existing laws of most States and Territories make provision
for a statutory defence along the lines of the general law defence.
However, the scope of the statutory defences differs in each
jurisdiction. For example, in Victoria, section 3A of the Wrongs
Act 1958 provides qualified privilege for fair and accurate
reports of proceedings of Parliaments and Courts in other
Australian jurisdictions and section 5 provides qualified privilege
for fair and accurate reports in newspapers on proceedings of
municipal councils.
The proposed section extends to a larger class of proceedings
than the general law defence. The provision ensures that if a
State or Territory includes a class of proceedings in its equivalent
of Schedule 3, then those proceedings will also have the benefit
of this defence in all other States and Territories that enact the
model provisions. Also, the new defence limits the
circumstances in which the defence can be defeated to situations
where the plaintiff proves that the defamatory matter was not
published honestly for the information of the public or the
advancement of education.
Clause 30 provides for a defence of qualified privilege that is based on the
provisions of section 22 of the Defamation Act 1974 of New
South Wales. The proposed section provides that it is a defence
to the publication of defamatory matter to a person (the recipient)
if the defendant proves that--
(a) the recipient has an interest or apparent interest in having
information on some subject; and
(b) the matter is published to the recipient in the course of
giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is
reasonable in the circumstances.
The proposed section lists a number of factors that the court may
take into account in determining whether the conduct of the
defendant was reasonable. These factors largely mirror the
factors relevant at general law as stated by the House of Lords in
Reynolds v Times Newspapers Ltd (2001) 2 AC 127. (In this
regard, it should be noted that the New South Wales Court of
Appeal in John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR
373 refused to follow the more liberal view of the general law
taken by the House of Lords). These factors were recognised by
the Victorian Court of Appeal in Herald & Weekly Times Ltd &
Anor v Popovic (2003) 9 VR 1 at 29-30.
17
As the defence created by the proposed section is a defence of
qualified privilege, it can be defeated on the same grounds as the
defence of qualified privilege at general law. For example, the
proposed section makes it clear that the defence may be defeated
if the plaintiff proves that the publication was actuated by malice.
The defence is broader than the defence at general law because
the interest that the recipient must have or apparently have is not
as limited as at general law. It has been said of the New South
Wales provision that "[w]hat the section does is to substitute
reasonableness in the circumstances for the duty or interest which
the common law principles of privilege require to be
established". See Morosi v Mirror NewspapersLtd [1977] 2
NSWLR 749 at 797.
The proposed section, however, alters the factors referred to in
the New South Wales provision in 2 important respects.
Firstly, it requires the court to take into account whether it was in
the public interest in the circumstances for the matter published
to be published expeditiously. The New South Wales provision
limits the court to a consideration of whether it was necessary in
the circumstances for the matter published to be published
expeditiously. Secondly, it requires a court to take into account
the nature of the business environment in which the defendant
operates. The New South Wales provision does not include this
factor in its list of factors.
Clause 31 provides for a number of defences relating to the publication of
matter that expresses an opinion that is honestly held by its maker
rather than a statement of fact.
The proposed section distinguishes between 3 situations.
The first situation is where the opinion was that of the defendant.
In that situation, the defence is made out if it is proved that the
defendant held the opinion, the opinion related to a matter of
public interest and the opinion was based on proper material.
Proper material, for the purposes of the proposed section, is
material that--
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified
privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection
of a defence under the proposed section or proposed
section 28 or 29.
18
This defence will be defeated only if it is proved that the opinion
was not honestly held by the defendant at the time the defamatory
matter was published.
The second situation is where the opinion was that of the
defendant's employee or agent. In that situation, the defence is
made out if it is proved that the employee or agent held the
opinion, the opinion related to a matter of public interest and the
opinion was based on proper material. This defence will be
defeated only if it is proved that the defendant did not believe
that the opinion was honestly held by the employee or agent at
the time the defamatory matter was published.
The third situation is where the opinion was that of a third party.
In that situation, the defence is made out if it is proved that the
opinion was held by the third party at the time of publication, the
opinion related to a matter of public interest and the opinion was
based on proper material. This defence will be defeated only if it
is proved that the defendant had reasonable grounds to believe
that the opinion was not honestly held by the commentator at the
time the defamatory matter was published.
The defences, at least in relation to opinions personally held by
the defendant, largely reflect the defence of fair comment at
general law in Victoria. However, the proposed section clarifies
the position at general law in relation to the publication of the
opinions of employees, agents and third parties. The existing
laws of New South Wales, Queensland, Tasmania, Western
Australia and the Northern Territory make statutory provision
(whether partly or wholly) in relation to the defence of fair
comment.
Clause 32 provides that it is a defence to the publication of defamatory
matter if the defendant proves that--
(a) the defendant published the matter merely in the capacity,
or as an employee or agent, of a subordinate distributor;
and
(b) the defendant neither knew, nor ought reasonably to have
known, that the matter was defamatory; and
(c) the defendant's lack of knowledge was not due to any
negligence on the part of the defendant.
A person will be a subordinate distributor of matter for the
purposes of the proposed section if the person--
(a) was not the first or primary distributor of the matter; and
(b) was not the author or originator of the matter; and
19
(c) did not have any capacity to exercise editorial control
over the content of the matter (or over the publication of
the matter) before it was first published.
The proposed section also lists a number of circumstances in
which a person will generally not be treated as being the first or
primary publisher of matter.
The defence largely follows the defence of innocent
dissemination at general law. See, for example, Thompson v
Australian Capital Television Pty Ltd (1996) 186 CLR 574.
However, the provision seeks to make the position of providers
of Internet and other electronic and communication services
clearer than it is at general law. For example, the provider of an
Internet email service will generally not be treated as being the
first or primary distributor of defamatory matter contained in an
email sent using the service. Accordingly, a service provider of
that kind will be treated as being a subordinate distributor for the
purposes of the defence unless it can be shown that the service
provider was the author or originator of the matter or had the
capacity to exercise editorial control over the matter.
Clause 33 provides that it is a defence to the publication of defamatory
matter if the defendant proves that the circumstances of
publication were such that the plaintiff was unlikely to sustain
any harm.
The defence of triviality does not exist under the general law in
Victoria. However, the existing laws of the Australian Capital
Territory, New South Wales, Queensland, Tasmania and Western
Australia already provide for the defence.
Division 3--Remedies
Clause 34 provides that a court, in determining the amount of damages to be
awarded in any defamation proceedings, is to ensure that there is
an appropriate and rational relationship between the harm
sustained by the plaintiff and the amount of damages awarded.
Clause 35 provides for the determination of damages for non-economic loss
for defamation. A limit on the amount of damages for non-
economic loss is imposed ($250 000). The proposed section also
provides for the indexation, by order of the Minister published in
the Government Gazette, of the maximum amount that may be
awarded as damages for non-economic loss. A court will not be
permitted to order a defendant to pay damages that exceed the
maximum damages amount under the proposed section unless it
is satisfied that the circumstances of the publication of the matter
20
to which the proceedings relate are such as to warrant an award
of aggravated damages.
The existing laws of the States and Territories do not currently
impose a cap on damages for non-economic loss that may be
awarded in defamation proceedings.
Clause 36 provides that a court, in awarding damages, is generally to
disregard the malice or other state of mind of the defendant at the
time the matter to which the proceedings relate was published.
Clause 37 provides that a court cannot award exemplary or punitive
damages for defamation.
The award of these damages is currently permitted under the
existing laws of all of the States and Territories other than New
South Wales.
Clause 38 lists some factors that a court may take into account in mitigation
of damages. The list is not intended to be exhaustive.
The existing laws of a number of States and Territories make
provision for similar mitigating factors, although there are
differences between the jurisdictions as to the factors expressly
recognised by legislation.
Clause 39 enables a court in defamation proceedings that finds for a
plaintiff on more than one cause of action to assess damages as a
single sum.
The existing law of New South Wales already confers this power
on its courts.
Division 4--Costs
Clause 40 requires a court (unless the interests of justice require otherwise)
to order costs against an unsuccessful party to proceedings for
defamation to be assessed on an indemnity basis if the court is
satisfied that the party unreasonably failed to make or accept a
settlement offer made by the other party to the proceedings.
The proposed section also provides that in awarding costs in
relation to proceedings for defamation, the court may have regard
to--
(a) the way in which the parties to the proceedings conducted
their cases; and
(b) any other matters that the court considers relevant.
The proposed section is based on the provisions of section 48A of
the Defamation Act 1974 of New South Wales.
21
PART 5--MISCELLANEOUS
Clause 41 facilitates the proof in civil proceedings for defamation of
publication in the context of mass produced copies of matter and
periodicals.
Clause 42 facilitates the proof in civil proceedings for defamation of
criminal convictions.
Clause 43 provides that a person in civil proceedings for defamation is not
excused from answering a question, or discovering or producing
a document thing, on the ground that the answer may tend to
incriminate the person of an offence of criminal defamation.
However, the answer, document or thing is not admissible in
evidence in proceedings for criminal defamation.
Clause 44 provides for how notices may be given under the proposed Act.
Clause 45 confers a power to make regulations for the purposes of the
proposed Act.
Clause 46 provides that, generally, the proposed Act will apply to
defamatory matter that is published after the commencement of
the proposed Act. However, the existing law will continue to
apply to--
(a) a cause of action for defamation that accrued before the
commencement of the proposed Act, and
(b) a cause of action for defamation that accrued after the
commencement of the proposed Act, but only if--
(i) the action is raised in proceedings that include
other causes of action that accrued before that
commencement; and
(ii) the action accrued no later than 12 months after
the earliest pre-commencement action accrued;
and
(iii) each action in the proceedings arose out of the
publication of the same, or substantially the same,
matter on different occasions.
22
Clauses 47 and 48 amend the Limitation of Actions Act 1958 to provide
that, generally, a civil action for defamation must be commenced
within 1 year following the date of publication of the matter of
which the plaintiff complains. However, a court must extend this
limitation period to a period of up to 3 years if satisfied that it
was not reasonable in the circumstances for the plaintiff to have
commenced the action within the 1 year period.
Under the existing law of Victoria the limitation period is
generally 6 years. Under their existing laws, both New South
Wales and the Australian Capital Territory provide for a 1 year
limitation period that can be extended for a limited further period.
In South Australia and Western Australia actions for slander are
subject to a limitation period of 2 years. In other cases and in
other jurisdictions, the limitation period is generally 6 years.
Clause 49 provides for the Acts referred to in Schedule 4 to be amended as
set out in that Schedule.
SCHEDULES
SCHEDULE 1
ADDITIONAL PUBLICATIONS TO WHICH ABSOLUTE
PRIVILEGE APPLIES
Schedule 1 facilitates the listing of publications that are subject to absolute
privilege for the purposes of proposed section 27 (defence of
absolute privilege) in addition to the publications specified in that
proposed section. This schedule is inserted for the purposes of
facilitating consistency with the model defamation provisions
being adopted in all States and Territories. Currently no
publications are listed.
SCHEDULE 2
ADDITIONAL KINDS OF PUBLIC DOCUMENTS
Schedule 2 facilitates the listing of kinds of documents that are to be treated
as public documents for the purposes of the defence under
proposed section 28 (defence for publication of public
documents) in addition to the documents specified in that
proposed section. This Schedule is inserted for the purposes of
facilitating consistency with the model defamation provisions
being adopted in all States and Territories. Currently no
publications are listed.
23
SCHEDULE 3
ADDITIONAL PROCEEDINGS OF PUBLIC CONCERN
Schedule 3 facilitates the listing of kinds of proceedings that are to be treated
as proceedings of public concern for the purposes of the defences
under proposed section 29 (defences of fair report of proceedings
of public concern) in addition to the proceedings specified in that
proposed section. This Schedule is inserted for the purposes of
facilitating consistency with the model defamation provisions
being adopted in all States and Territories. Currently no
publications are listed.
SCHEDULE 4
CONSEQUENTIAL AMENDMENTS
Schedule 4 makes amendments to Acts consequential on the enactment of
this Act and, in particular, repeals existing civil defamation law
provisions in Part I of the Wrongs Act 1958.
SUMMARY OF EXISTING DEFAMATION LAWS
Existing civil law of defamation of the States and Territories
Jurisdiction Applicable civil law
Australian Capital The general law applies in the Australian Capital
Territory Territory subject principally to the provisions of
the Civil Law (Wrongs) Act 2002 of that
Territory, particularly Chapter 9 of that Act.
New South Wales The general law applies in New South Wales
subject principally to the provisions of the
Defamation Act 1974 of that State.
Northern Territory The general law applies in the Northern Territory
subject principally to the provisions of the
Defamation Act of that Territory.
Queensland The civil law of defamation in Queensland has
been codified by the Defamation Act 1889 of that
State.
South Australia The general law applies in South Australia subject
principally to the provisions of the Civil Liability
Act 1936 of that State, particularly Part 2 of that
Act.
Tasmania The civil law of defamation in Tasmania has been
codified by the Defamation Act 1957 of that State.
24
Victoria The general law applies in Victoria subject
principally to the provisions of the Wrongs Act
1958, particularly Part I of that Act.
Western Australia The general law applies in Western Australia
subject principally to the provisions of the
following Acts--
(a) the Libel Act 1843 of the United Kingdom;
(b) the Newspaper Libel and Registration Act
1884;
(c) the Newspaper Libel and Registration Act
1884 Amendment Act 1888;
(d) The Criminal Code set out in the Criminal
Code Act 1913, but only to the extent that the
Code declares the publication of defamatory
matter to be lawful. See section 5 of the
Criminal Code Act 1913, Chapter XXXV of
the Code and West Australian Newspapers
Ltd v Bridge (1979) 141 CLR 535.
Existing criminal law of defamation of the States and Territories
Jurisdiction Applicable civil law
Australian Capital The law of criminal defamation in the Australian
Territory Capital Territory is contained in the Defamation
(Criminal Proceedings) Act 2001 of that
Territory.
New South Wales The law of criminal defamation in New South
Wales is contained in the Defamation Act 1974 of
that State, particularly Part 5 of that Act.
Northern Territory The law of criminal defamation in the Northern
Territory is contained in the Criminal Code set
out in the Criminal Code Act of that Territory,
particularly Division 7 of Part VI of the Code.
Queensland The law of criminal defamation in Queensland is
contained in the Defamation Act 1889 of that
State, particularly sections 8 and 9 and Part 8 of
that Act.
South Australia The law of criminal defamation in South
Australia is contained in section 257 of the
Criminal Law Consolidation Act 1935 of that
State.
25
Tasmania The law of criminal defamation in Tasmania is
contained in the Criminal Code set out in the
Criminal Code Act 1924 of that State, particularly
Chapter XXIII of the Code.
Victoria The general law offence of criminal defamation
applies in Victoria, subject to the provisions in
Part I of the Wrongs Act 1958 and subject to the
maximum term of imprisonment specified for the
offence by section 320 of the Crimes Act 1958.
Western Australia The law of criminal defamation in Western
Australia is contained in The Criminal Code set
out in the Criminal Code Act 1913, particularly
Chapter XXXV of that Code.
26