Defamation law reform is here – what are the reforms and what next?
By Hamish Thomson and Johanna Miller
New South Wales has become the first state in Australia to reform and modernise its defamation law. The reforms introduced in the Defamation Amendment Bill 2020 (NSW) are intended to reduce defamation litigation and aim to prevent trivial and vexatious claims from entering the court system. In particular, the reforms aim to deal with the increase of claims brought about by social media usage. At the time of publishing this article, the bill has been passed, but the reforms have not yet commenced.
A key feature of the new laws is the introduction of a “serious harm threshold”, which is intended to keep minor “backyard” claims out of court. It is now necessary for the publication of a defamatory matter to have caused, or be likely to cause, serious harm to the reputation of a person for a claim to be brought.
The state is also moving towards avoiding litigation in the first place, introducing a new requirement for an aggrieved person to issue a “concerns notice” before going to court. Among other things, a concerns notice:
- Is made in writing;
- Informs the publisher of their defamatory imputations which will potentially cause serious harm to the aggrieved person; and
- Informs the publisher of the harm that has or is likely to be caused by those imputations.
After a concerns notice is issued, the publisher usually has 28 days to offer to make amends with respect to the publication. This can be done through any kind of offer, or providing particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person.
The reforms will also introduce a public interest defence for journalists, and a defence for peer-reviewed material in scientific and academic journals.
At O’Hearn Lawyers, our experienced team can provide you plain-English advice regarding any defamation matter.
Contact our team on 02 4951 8199 or click below to start your case.
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