Defamation Law Reform Revisited
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 13/2002 by Gareth Griffith
|Defamation Taskforce Report: This paper presents a background to the most recent proposal for defamation law reform in NSW, namely, the report of the Attorney General's Taskforce on Defamation Law Reform titled, Defamation Law: Proposals for Reform in NSW. |
Main recommendations: As outlined in a speech by the Premier on 9 July 2002 the Report's main recommendations are to: (a) make greater provision for the resolution of disputes without litigation; (b) provide greater incentives for parties, particularly publishers, to use corrections and apologies to avoid litigation; (c) introduce more onerous cost penalties against parties who unreasonably fail to resolve matters by the above means; (d) reduce the limitation period for actions in defamation to one year (from 6 years at present); (e) provide that compensation for non-economic loss will not exceed payouts in personal injury cases - that is, $350,000; and (f) prevent corporations and statutory bodies from bringing actions in defamation (p 1).
Strong views: Defamation law gives rise to strong views, notably concerning the technicalities it involves, as well as the costs arising from lengthy trials (pp 3-5).
Money and reputation: The usual remedy in defamation is an award of monetary damages. A long-standing issue in the defamation debate is how does an award of money vindicate reputation? If defaming a person alters the perception others have of that person, thereby damaging their reputation, how in a theoretical sense is that reputation restored by an award of money? (p 5)
Out of court settlements: From a practical standpoint, often settlements are reached out of court and the award of damages is not made public. According to the NSW Law Reform Commission, a confidential deed is often used is these circumstances, which prohibits the public release or discussion of the terms of settlement. One result is that 'the defamation remains uncontradicted in the public mind'; another is that such arrangements make it very hard to compile reliable empirical data on defamation cases (p 6).
Three Australian defamation regimes: Broadly, there are three varieties of defamation law in Australia: (a) that of the 'common law States' of Victoria, South Australia and Western Australian; (b) that of the Code States, Queensland and Tasmania,; and (c) that of the 'common law with statutory modifications' jurisdictions - NSW under the Defamation Act 1974, the ACT under the Defamation Act 2001 and the Northern Territory under its Defamation Act. The push towards national uniform defamation law appears to have stalled (p 15).
Imputations as cause of action: Unlike at common law, under section 9 (2) of the NSW Defamation Act there is a separate cause of action for the publication of each defamatory imputation to each recipient. This means that in NSW a cause of action for defamation arises from the publication of defamatory imputations themselves, rather than from the defamatory matter they are embodied within. This has resulted in a sophisticated and unique pleading regime in which 'each substantially different imputation conveyed by the matter complained of gives rise to a separate cause of action' (p 16).
1994 reforms: The Defamation (Amendment) Act 1994, which came into effect on 1 January 1995, introduced the following major changes to defamation law in NSW: (a) under section 7A (4) the trial judge and not the jury should determine whether any defence was established and the amount of damages (if any) that should be awarded to the plaintiff; (b) under section 46A, in the assessment of damages the trial judge should ensure that any damages awarded have an appropriate relationship to the injury suffered and take account of the general range of damages for non-economic loss in personal injury awards in NSW (including awards made under any relevant statute) (p 24).
Section 7A trials: Section 7A trials are the single most controversial aspect of the present defamation regime in NSW. A continuing theme in the current debate is that section 7A jury findings are often perverse or unpredictable, and that the section has increased the costs involved. It is probably fair to say that the one thing most practitioners would have wanted to emerge from the current reform process is for the section 7A trial to be disbanded. The Defamation Taskforce Report recommended that section 7A trials be retained (p 24 and pp 30-35).
Amending section 22: The defence of qualified privilege under section 22 of the Defamation Act has rarely been relied upon successfully by a mass media defendant in NSW. This is owing to the restrictive interpretation of the section which requires publishers to prove that they believed in the truth of what was published. The Defamation Taskforce Report recommended that this requirement be omitted. To this end the Taskforce unanimously recommended that section 22 should be amended to include a set of factors for courts to consider when assessing reasonableness. Recommendation 13 make no mention of the publisher's belief in the truth of the publication (pp 45-46).
Government and political matters: The inter-relationship between the implied constitutional freedom of political communication, common law qualified privilege and the statutory defence of qualified privilege under section 22 is complex. Section 22 is said to overcome the restrictions of the duty/interest requirement at common law and to focus attention instead on reasonableness in all the circumstances. This proved influential in the reformulation by the High Court in Lange (1997) 189 CLR 520 of the constitutional freedom of political communication. One problem raised by Lange is just how broadly or narrowly the concept of the 'political' is to be construed. Recommendation 15 is one response to that question. Thus, an additional proposal supported by 2 of the 4 members of the Taskforce was for the insertion of a new section 22A to elucidate the defence of qualified privilege as this relates to 'government and political matters' (pp 49-52).