New South Wales has implemented the changes recommended as a result of the review into Australia’s Model Defamation Provisions. Among other things, the Defamation Amendment Act 2020 No 16 (Amending Act) introduces mandatory concerns notices, the element of serious harm and an additional public interest defence. We discussed these changes in our August 2020 article regarding the Defamation Amendment Bill.

The Uniform Civil Procedure Rules 2005 (NSW) have also been amended to include pleading requirements related to the element of serious harm and the additional defences.

Concerns notices – section 12A & 12B

Under the new provisions, defamation proceedings cannot be commenced until 28 days after an aggrieved person has provided the potential defendant with a concerns notice, specifying the allegations and evidence they seek to rely upon.

The proposed defendant has the opportunity during the 28 day period to provide an offer to make amends. If this offer is accepted, the aggrieved person cannot then assert an action for defamation for the same matter.

Serious harm element – section 10A

A new element of serious harm has now been introduced to the cause of action. That is, the publication of defamatory material about a person must have caused, or be likely to cause, serious harm to their reputation.

The element of serious harm is to be determined by the judicial officer as soon as practicable before the trial, in order to avoid unnecessary time and costs where this element cannot be satisfied or the claim is trivial.

Defence of responsible communication in the public interest – section 29A

A new defence has been introduced. Under section 29, a defence is available where a defendant can demonstrate that the relevant publication concerns an issue of public interest, and that they reasonably believed they were acting in the public interest in publishing it.

The court will take into account a range of factors, including:

• the seriousness of the defamatory imputation
• whether the information relates to public functions and activities
• the integrity of the sources used, steps taken to verify the information and whether the publication distinguishes between suspicions, allegations and proven facts
• the importance of freedom of expression in the discussion of issues of public interest.

What do these changes mean?

• A plaintiff must issue a concerns notice before commencing proceedings.
• To prevent backyarders or trivial claims, the plaintiff must show serious harm.
• A new defence exists, which would be of particular relevance to media defendants.