Important changes to South Australia’s defamation laws.

Parliament has for some time been facing increased pressure from media publishers to amend Australia’s uniform defamation laws to strike the right balance between a person’s right to freedom of speech and the need to protect a person’s reputation from slander.

Whether or not the right balance has been struck is open to debate and largely depends on whether you’re speaking with a publisher or someone who has been defamed.

Nevertheless, whether the right balance has been struck the amendments are upon us with the changes operating in South Australia from 1 July 2021. These amendments only apply to defamatory matters published after commencement of the amendments. As a result the pre-existing laws will continue to apply to any ongoing matters before the Court and any defamatory publications made before the date the amendment was proclaimed.

We have set out the key changes to the Act.

Serious Harm Threshold

The amendments introduced a new threshold of serious harm. Prior to the amendments, the person defamed, otherwise known as the Applicant in court proceedings, was required to prove on the balance of probabilities that:

1. Material has been published about them either in writing or orally to a third person;
2. This publication causes the third person/people to form a reduced reputation opinion of them.

The amendments now add an additional onus of proof that the Applicant must establish that:

1. The publication of the defamatory material has caused or is likely to cause serious harm to their reputation. [Notably, if the Applicant is an excluded corporation (i.e. either the objects of the corporation for which it is formed do not include obtaining financial gain for its members or corporators or it has fewer than 10 employees and is not associated with another corporation) then to prove serious harm they must have suffered, or be likely to suffer, serious financial loss.]

This additional element can be determined in pre-trial steps, rather than at the trial, if issues are raised as to the seriousness of the publication as a preliminary matter.

This is not entirely a new concept for the courts. Prior to the amendments, the publisher was able to raise a defence of triviality which they had to prove that the Applicant was unlikely to sustain any harm. The key differences between the new threshold and old defence is the onus is on the Applicant to establish that they have suffered serious harm (rather than the publisher to say it was trivial) and the issue can be determined in the preliminary stages of the action rather than waiting until trial.

It is therefore important for any prospective Applicants to consider the harm they have suffered and collate all evidence relevant to this prior to the commencement of proceedings.

Concerns Notice

The defamed person must now issue the publisher with a concerns notice (and allow 28 days for the publisher to offer to make amends) priorto commencing proceedings. The Act specifies what needs to be included in concerns notice including:

• Where the defamatory material can be accessed (and provide a copy, where practicable);
• The imputations;
• Details of the serious harm that has been caused or is likely to be caused.

Single Publication Rule

As the law previously stood, each time an online publication was accessed or downloaded by a third person, it constituted a new publication. The Applicant then had one year from that date to issue proceedings and not one year from the date of the original publication. Therefore someone could be sued for material they posted online many years and before if that publication had recently been found and accessed by a third person.

The law has changed in this respect so that the one year period commences on the day that the publisher uploads it for access or sends it electronically, rather than the date that a person downloads or receives it.

It is important to note that the Applicant will still need to prove that the material has been downloaded or accessed by a third person otherwise they will not be able to establish the first or second element, set out above.

There is the possibility that the limitation period can be extended up to three years if the courts, when considering all the circumstances, believe it is just and reasonable.

New Defence: Public Interest

This new defence of public interest is largely derived from the UK Defamation Act. Its intention is to provide protection to the media when publishing matters that are of public concern or interest. In essence, it is primarily designed to protect ‘responsible journalism’.

It will require the publisher to establish that the matter concerns an issue of public interest and that they reasonably believed that the publication of the matter was in the public interest. The court will need to take into account all the circumstances of the matter including:

• the seriousness of the imputations carried by the matter published;
• the extent to which the publication distinguishes between allegations,
• suspicions and proven facts;
• the extent to which the publication relates to the performance of the defamed person’s public functions or activities;
• whether it was in the public interest for the matter to be published quickly;
• the sources relied on and the integrity of the sources;
• If the source is anonymous, whether there is a good reason for that;
• whether the matter published contained the substance of the person’s side of the story in the publication. Or, whether there were reasonable attempts to publish a response from the person;
• any other steps are taken to verify the information in the publication; and
• the importance of freedom of expression in the discussion of matters in the public interest.

New Defence: Failure to accept reasonable offer to make amends

A publisher has 28 days from the date of receiving the concerns notice to make an offer of amends. This time limit may be extended if further particulars relating to the concerns notice are required.

If the publisher’s offer is not accepted by the applicant, but later found by the Court to have been reasonable, then this will provide the publisher a defence to the action.

Damages

The amendments also impose a cap on the damages for non-economic loss. This capped amount of $432,500 is intended to only be awarded in a most serious case. It appears however that the Courts will still have the power to award aggravated damages in addition, where warranted (as well as damages for economic loss, where the applicant proves the defamatory publication has given rise to such loss).

South Australian Courts have previously been quite modest in their awards of damages for non-economic loss in defamation compared to the eastern States. One of the highest non-economic loss damages awarded by a South Australian court was $100,000 in Duffy v Google Inc which Johnston Withers was proudly involved in (click here to read further about this landmark case).

Johnston Withers Lawyers: Defamation Lawyer Specialists

Johnston Withers Lawyers are specialists in the area of defamation. If you would like advice or representation, please contact one of our specialist defamation lawyers on (08) 8231 1110, or get in touch online.