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.
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:
The amendments now add an additional onus of proof that the Applicant must establish that:
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.
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:
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.
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:
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.
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 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.
Practice leader: Litigation
Lessons learnt from the recent High Court cases of Fairfax Media Publications Pty Ltd v Voller  HCA 27 and Google LLC v Defteros  HCA 2. Prepared by Caitlin Walkington and Richard Bradshaw.
Renewable energy projects can be low-stress revenue streams for farmers to earn regular income through good years and bad ones. To make the decision process easier, we’ve spelled out what farmers need to know before signing a solar or wind farm lease agreement.