Recent high-profile cases, such as those commenced by Rebel Wilson and Geoffrey Rush, have brought defamation proceedings and their seemingly ever-increasing payouts firmly into the public consciousness. The Defamation Amendment Bill 2020 (the Bill) aims to curb these skyrocketing amounts and also reduce the number of cases which end up in court.

The Parliamentary Counsel Committee’s explanatory note emphasises that the Bill will improve the balance between protecting individual reputations and freedom of expression. However, in practice it is defendants who will primarily benefit from the changes, which increases the level of harm the plaintiff needs to establish they have suffered and provides new defences for defamation claims.

There are a number of amendments in the Bill, but three are of particular interest:

1. The requirement that a plaintiff must give a concerns notice to a defendant prior to commencing court action.
2. That a plaintiff must establish that they have suffered, or would suffer, serious harm due to the publication.
3. A new defence has been created for publications made in the public interest.

The Bill is awaiting assent. However, once in operation, the amendments will impact how plaintiffs and defendants approach defamation claims.

Concerns notices

Currently, plaintiffs can serve a concerns notice under the Defamation Act 2005 (NSW) but were under no obligation to do so before commencing litigation. The Bill requires that a plaintiff serve a concerns notice on the defendant at least 28 days before commencing proceedings, though exceptions will be allowed with leave of the court. This new requirement is designed to encourage parties to negotiate prior to going to court and, therefore, reduce the number of matters before the courts and reduce legal costs associated with preparing for, and running, matters to hearing.

Serious harm

In a significant change, plaintiffs will now have to prove that they have suffered, or are likely to suffer, serious harm as a result of the publication. Previously, harm was assumed.

This change is designed to prevent 'backyarders' (trivial or minor defamatory publications) leading to court proceedings.

This change may be an obstacle to many claims. Previously, a defence of triviality was available, but it was for the defendant to prove that no significant harm to the plaintiff had been done. The defence was not easy to establish. That has now flipped and the plaintiff must establish that they have suffered, or are likely to suffer, serious harm.

Plaintiffs of all types need to be aware of this change, and defendants would be prudent to consider interlocutory proceedings in circumstances where they consider the plaintiff may struggle to establish serious harm at trial.

Defence of responsible communication in the public interest

Defendants have previously been able to rely on a defence of qualified privilege. Broadly this provides a defence for the publication of otherwise defamatory material where the person publishing the material and the person receiving the material have a reciprocity of interest in that material.

The new defence provides for publication of material that would otherwise be defamatory so long as it is a ‘responsible communication in the public interest.’ The Bill provides a non-exhaustive list of factors the court can take into account when considering if this standard has been met. Those factors include:

• the extent to which the material relates to public functions and activities
• the source of the material, which if anonymous requires justifying why it should remain that way
• the seriousness of any defamatory imputation.

These factors demonstrate that this defence is largely geared towards protecting journalists, and the passing of the legislation has unsurprisingly been met with a warm response from media organisations.

Key takeaways

The Bill is a bold move by the government to seek to curb the number of defamation cases ending up in court, and reduce the increasing damages payouts of recent years.

For both plaintiffs and defendants, there is the potential to take advantage of the new requirement for concerns notices and genuinely pursue settlement negotiations prior to filing proceedings. Plaintiffs need to be aware of the additional burden of establishing that they meet the threshold of serious harm, and be prepared to present evidence accordingly.

For defendants, there is a new defence which may be available and also a new basis for potentially having matters dismissed at an early stage (i.e. on the basis that the plaintiff has not suffered serious harm).

It will be interesting to see in coming years how these new provisions are interpreted by the courts and whether they achieve the objectives of the Bill.