Tipping the balance – a fresh look at the impact of the 2021 defamation law reforms (Part 2)
In the second article of our four part series on the current state of defamation law in Australia, we consider the following further key reforms in this area following their introduction in 2021:
- the single publication rule;
- the amendments to the concerns notice procedure; and
- offers to make amends, and the defence available where a reasonable offer is rejected.
Our first article in the series covered the most notable reform to this area of law, the new serious harm threshold. The three changes discussed below arguably make it harder to bring a defamation claim in Australia than ever before.
The single publication rule
Before 1 July 2021, the one-year limitation period applicable to defamation claims commenced each time a defamatory statement was published, or republished, to a person. A consequence of this rule was that the limitation period may be ‘restarted’, well after one year from the date of the first publication – a loophole that the Duke of Brunswick exploited over 150 years ago. In trying to establish a defamation claim, he successfully circumvented a limitations defence by sending a servant to buy a back issue of the newspaper containing a defamatory statement about him, 17 years after its original publication.
In the internet age, the limitation period applicable to a defamation claim relating to an online publication may be extended each time the relevant webpage is downloaded. Consequently, parties that believe themselves to be defamed may effectively take steps to render the limitation period ineffective by accessing the relevant statement online. The single publication rule addresses this workaround by treating the first publication as the only publication for the purpose of determining the limitation period. For electronic materials, the “date of first publication” has been redefined as the day on which the matter was first uploaded for access or sent electronically to a recipient. The rule applies to publications before 1 July 2021, where the re-publication occurs after 1 July 2021.
Where a subsequent publication is published in materially different circumstances than the first publication, an exception to the single publication rule may arise. Materially different circumstances may include the prominence of a matter and the extent of the subsequent publication. This exception has yet to be tested by the courts, so the extent of this rule is unclear at this stage.
The introduction of concerns notices
The concerns notice process was introduced on 1 July 2021 as a mandatory first step for aggrieved persons in New South Wales, Victoria, Queensland, Australian Capital Territory, Tasmania, and South Australia. A person who believes that they have been defamed may only litigate based on the matters set out in the concerns notice, including the nature of defamatory imputations alleged in the concerns notice. These amendments require prospective claimants to carefully consider and formulate their claim at the very outset of the process and, if necessary, seek specialist advice at an early stage. If a notice is not served, is deficient or only notifies the respondent of some alleged defamatory imputations and others, the respondent may rely on that failure in an application to strike out the whole or part of the claim (as the case may be).
Offers to make amends
The uniform defamation legislation has also clarified that a valid offer to make amends made by the respondent in response to a concerns notice may include an offer to:
- correct the statement giving rise to the defamatory imputation
- publish an apology
- removing the relevant statements from a website
- economic compensation or non-economic compensation.
Once an offer to make amends is made, a person who believes they have been defamed may only commence defamation proceedings when the time for acceptance of the offer has expired.
The reforms also saw the introduction of a defence to the alleged defamatory conduct where the maker of the statement has made a reasonable offer to make amends that is rejected. The maker of the statement may then raise the fact that the alleged defamed person failed to accept a valid and reasonable offer of amends as a defence to defeat the claim. Justice Parker of the Supreme Court of New South Wales has labelled this defence “draconian”, observing the stark difference between the consequence of a failure to accept a reasonable offer of compromise – which typically results in costs penalties – and the more severe consequence of failing to accept a reasonable offer to make amends, which entirely deprives a person who alleges they have been defamed of the substantive right to bring a defamation claim.
Lessons for litigants
The new rules place several obstacles in the path of parties seeking to bring a defamation action, tipping the balance under the old regime that was thought to unfairly favour the person who complained of being defamed. Since the introduction of the new rules, potential claimants (and their solicitors) must now:
- carefully consider the details of their claim at the very outset of the process and ensure that any concerns notice contains particulars of all relevant defamatory imputations and the serious harm which it says was suffered as a consequence of those imputations (at the risk the Court will decline to hear matters not raised in the concerns notice)
- move quickly to bring their claim for defamation, particularly in response to matters published online, as the 12 month limitation period runs from the original date of publication (except where the re-publication was made in materially different circumstances)
- carefully consider whether to accept any offer to make amends, at the risk of losing the right to bring their claim if the rejected offer is subsequently deemed reasonable and valid in all the circumstances.
In the next article in our four-part series on the state of play in defamation law in 2023, we will consider the new public interest defence and several noteworthy recent cases handed down by the Courts in this area.
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