A brief review of the law of defamation and its recent changes
On 1 July 2021, major changes to the defamation law came into effect. These changes introduced, among other things, the single publication rule, serious harm threshold and the requirement to issue a concerns notice before proceedings can be commenced.
But what does this mean for the layperson? In short, the court is tired of baseless claims against keyboard warriors and social media “sin-fluencers”. This article discusses what is needed to have your day in court for a cause of action in defamation.
What is defamation?
Defamation is the communication to a third party of material that harms the reputation of another that is reasonably identifiable from the material. The purpose of the cause of action is to vindicate and protect the reputation of the defamed person. The uniform defamation laws in each Australian State and Territory provide a remedy for defamation by way of damages.
Publication is the communication of defamatory material, and the imputations drawn from same, to a third party. It may occur via any number of means including spoken words, writing, drawings, broadcasts or social media posts.
Prior to 1 July 2021, the defamed party had a separate cause of action for each publication of defamatory material. If that material was published via media or the internet, this was useful for a would-be-litigant in extending the limitation period for which it could bring its claim, due to the ease in which material may be republished (formerly, when the material was downloaded).
However, with the recent introduction of the single publication rule, the time in which a defamation claim may be commenced is calculated by reference to the date on which the defamatory material was first published (meaning, in the case of electronic publications, when it was first uploaded).
An exception to this applies in the instance where a latter publication is published in a substantially different form. In such circumstances, the limitation period will likely be calculated in reference to that latter publication.
The defamed party must be reasonably identifiable in reference to the defamatory material, or the imputations carried by same. In circumstances where the defamed party is not explicitly named, it is sufficient that the recipients of the defamatory material had knowledge of particular facts or circumstances from which the recipient could identify the defamed party.
Where the defamed party is not named, the Court will consider, objectively, whether an ordinary person, in the circumstances, would reasonably believe that the defamed party is the subject of the defamatory material.
Imputations and Defamatory Meaning
What is said is not always all that is said. To substantiate that a publication is indeed defamatory, the meaning of the published material must be determined. This is referred to as an imputation. ‘Imputation’ has been defined by the Court “as the matter (act or condition) imputed, that is, asserted of or attributed to a person”.
An imputation may be the natural and ordinary meaning conveyed, or a true innuendo (ie: where the recipient of a publication has knowledge of extrinsic facts from which a different meaning may be understood). The meaning is not limited to the words alone, but also extends to meanings inferred or implied by the material.
The insertion of section 12B of the Defamation Act 2005 (Qld) (the Act) makes it a prerequisite that a Concerns Notice is given before defamation proceedings can be commenced. A Concerns Notice must:
- be in writing;
- specify the location where the matter can be accessed;
- inform the publisher of the imputations that the defamed party considers to be carried by the matter about the defamed party;
- inform the publisher of the harm the defamed party considers to be serious harm to the defamed party’s reputation caused, or likely to be to be caused, by the publication of the matter; and
- (in the event that the defamed party is a corporation that has a cause of action for defamation) inform the publisher of the serious financial loss caused, or likely to be caused, by the publication of the matter.
In brief, a Concerns Notice particularises your position to the publisher of the facts, matters and circumstances surrounding the commencement of the foreshadowed defamation proceedings.
Whilst a defamed party may bring an application to waive the requirement of delivering a Concerns Notice, the inclusion of section 12B of the Act may act as a deterrent from proceeding straight to Court. So, in essence, the purpose of the Concerns Notice is to encourage would-be-litigants to settle their disputes without wasting the Court’s time and resources.
Undoubtedly the most fundamental change to the Act is that of the serious harm element. Since 1 July 2021, published matter is not defamatory unless it has caused, or is likely to cause, serious harm to the reputation of the defamed party (and in the case of a corporation, serious financial loss). This change is consistent with the approach taken by our colleagues in England and Wales.
As of the date of writing, the statutory threshold of serious harm has only been considered by the New South Wales District Court. In doing so, the considerations, and ultimate decision, were largely reliant on the judicial analysis of the serious harm threshold in Courts in England and Wales.
In brief, the Court found:
- to establish serious harm, the material must carry more than a ‘tendency’ to harm a plaintiff’s reputation. The plaintiff is required to establish that serious harm has been caused, or is likely to be caused to their reputation ‘as a fact on the balance of probabilities’;
- the Court can consider more than ‘the defamatory meaning of the words’. It can look at ‘all relevant circumstances’, such as ‘evidence of what actually happened after publication’;
- where a statement has a strong defamatory imputation and it has been shared with a wide readership or audience, it may be possible to conclude that serious harm has occurred on an ‘inferential’ basis;
4. serious harm may be established where the material was read by people who knew the plaintiff and where the plaintiff’s reputation may have been seriously harmed in the eyes of those ‘whose opinion of him matters’.
My next article will address what to do when you receive a Concerns Notice and provide a brief overview of defences to defamation.
If you have been defamed, have a good reputation and that reputation has been seriously harmed, please do not hesitate to reach out.