Australian defamation law is finally getting a long-overdue check-up. They’ve been pretty rare over the past 50 years. The Defamation Act 1958 was updated in 1974 and the current Act didn’t commence until January 1, 2006.
The timing wasn’t great. Almost four months later, Twitter founder Jack Dorsey sent his first tweet. Then Facebook grew beyond its Ivy League origins to become available to anyone over 13. The surge in these platforms over the dozen years since has redefined what “publication” means.
Our defamation law hasn’t kept pace. If the law doesn’t reflect the way we live our lives, then we should look at changing it. Outdated laws are about as useful as a Myspace account.
We now tweet, post, Instagram and increasingly read our news online via social media or directly on news sites. The question of whether defamation law needs updating to reflect the tectonic shift wrought by technology almost answers itself.
Relatively straightforward defamation law concepts like “publication” and “reputation” have lost their simplicity in the internet era. Pinpointing the time at which a print newspaper is published is fairly easy.
That task is much harder for an online article, image, gif or video. They can be downloaded, re-posted on social media or picked up by a search engine, at millions of different times and by millions of different people.
The NSW government’s Statutory Review of the Defamation Act 2005 identifies areas that could benefit from updating. We also know that platforms, transmitting statements to all corners of the globe, can create defamation cases between parties from different jurisdictions with different laws.
Given NSW defamation law is almost wholly based on Model Defamation Provisions in force in multiple Australian jurisdictions, NSW believes any reform should happen at a national level.
The release of the NSW government’s review in June came just in time for a meeting of the Council of Attorneys General (CAG) in Perth. At that meeting, I proposed – and CAG agreed – to reconvene the Defamation Working Group. Led by NSW, the group will consider our review’s findings and recommendations for CAG’s consideration and endorsement.
One recommendation in particular has attracted attention and controversy. The attention is welcome; the controversy is, for reasons I’ll make clear, unwarranted.
Recommendation 2 of the review has been characterised in recent coverage as contemplating the restoration of a corporation’s right to sue for defamation. Section 9 of the NSW Act restricts an action in defamation by a corporation to non-profit corporations or those employing fewer than 10 people.
Early reporting on the review warned of NSW’s “controversial proposal to give large corporations the right to sue”. This conclusion took considerable creative licence.
Strong investigative reporting on corporate wrongdoing is core business for Australian journalism, exposing nationally notorious instances of unconscionable business behaviour.
Examples include wholesale underpayment of 7-Eleven employees and the fleecing of retail bank customers. Without this reporting, these unethical business practices might never have seen the light of day.
I’m not suggesting that this part of the law should be changed. In fact, NSW’s review expressly concluded that “the balance struck [between competing arguments as to the present provision] continues to be appropriate”.
While the review recommends that the Defamation Working Party consider this issue, the recommendation simply reflects the uncontroversial proposition that issues of national significance are better resolved through national consultation undertaken at the national level.
The position being considered by the CAG Defamation Working Group for “endorsement” is that taken by the NSW review – that there ought to be no change.
The same goes for the fear that under new reforms, “a court could of its own motion deprive the parties of a jury”.
Juries inject community expectations into the veins of a process that could occasionally do with a transfusion. The jury’s role should not be taken lightly.
And the NSW review understands this. It acknowledges that the issue of juries is contentious, raises competing arguments, recommends that the issue be considered on a national level and, importantly, does not advocate that the law be changed.
National consultation is the theme of NSW’s review. It is important to get the states and territories around the table for an in-depth look at defamation law in the digital age.
Mark Speakman is the NSW Attorney General
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