As of 1 July 2021, the last of the recent reforms to the Defamation Act 2005 (Qld) came into effect, bringing Queensland’s defamation framework into line with the law in New South Wales, Victoria and South Australia.
Defamation law in Queensland
Defamation law in Queensland is governed by the Defamation Act. In recent years, this legislation has been critiqued as being unable to deal appropriately with online and digital publications, placing unreasonable limits on freedom of expression and failing to encourage the early resolution of defamation claims.
Accordingly, the Queensland Parliament has implemented a number of important reforms to the Act. The changes, which are all in effect as of 1 July 2021, seek to modernise the legislation and strike a better balance between freedom of expression and the need for individuals to be able to protect their reputation against serious harm. Similar reforms have been made into law in New South Wales, Victoria and South Australia.
So, what’s changed?
The key reforms include:
- a single publication rule
- changes to the pre-litigation process
- a serious harm threshold
- a new public interest defence and scientific or academic peer review defence
- a cap on damages for non-economic loss.
Single publication rule
The usual time limit for bringing a claim for defamation in Queensland is one year from the date of the defamatory publication.
Under the general law, each publication of a defamatory matter constitutes a separate cause of action. Publication ordinarily occurs whenever a third party receives the defamatory material in a communicable form.
For internet publications, this means that publication can occur each time that a webpage is downloaded. In practice, this meant that the one-year limitation period effectively recommenced with every new download of the defamatory material, even if it occurred years after the initial publication. Claimants were able to take advantage of this to, in effect, get around the one-year limitation period by relying on later downloads of the same material to establish a claim for defamation.
The single publication rule reform seeks to address this issue. Under the new rules, the start date for the one-year limitation period is the date that the material is first published. If the same or substantially similar material is published again at a later date, that will no longer constitute a new publication for the purposes of the limitation period. However, the single publication rule will not apply where the manner of publication in a subsequent publication is materially different from that of the first publication (for example, if the level of prominence or extent of a subsequent publication is much greater than the first publication, the single publication rule may not apply).
The reforms also clarify that the date of first publication for electronic material is the date that it is first uploaded for access online or sent electronically to a recipient, not when it is downloaded or received.
New pre-litigation processes
There is a process set out under the Act that involves a claimant sending a notice setting out the details of the defamatory publication to the alleged publisher. This is called a ‘concerns notice’. Following receipt of a concerns notice, the publisher can make an offer to make amends. If the claimant fails to accept a reasonable offer to make amends and proceedings are commenced, this can constitute a defence.
This was previously an optional process. However, to encourage parties to resolve defamation disputes at an early stage, the new rules mean it is now mandatory for a claimant to give the publisher a valid concerns notice before commencing proceedings for defamation (although a court may grant leave to commence proceedings without a concerns notice having been issued in certain circumstances). There are now specific formal requirements that a concerns notice must comply with in order to be a valid notice.
The amendments also include new rules about the timing and content of offers to make amends, which must be complied with if a publisher is to receive the benefit of the potential defence that arises if a reasonable offer to make amends is rejected.
Serious harm threshold
Another major change involves the introduction of a new ‘serious harm’ threshold. A claimant aggrieved by a defamatory matter will now have to establish that the publication has caused or is likely to cause ‘serious’ harm to their reputation.
The small group of corporate claimants that are eligible to bring defamation actions (not-for-profit companies and companies with fewer than 10 employees), will also need to establish that the publication has caused, or is likely to cause, serious financial loss.
There is yet to be a case considering the meaning of this new ‘serious harm’ element under the Defamation Act. However, cases considering similar legislation in the UK have held that, whether a defamatory publication causes ‘serious harm’ may depend on:
- the actual impact of the defamatory words, which may be assessed by reference to:
- the number and characteristics of the recipients of the publication
- the quality of the publication
- whether the claimant had any reputation to begin with
- the inherent tendency of the defamatory words to cause harm.
The reforms also include the introduction of two new defences that publishers accused of defamation may avail themselves of, which are:
- a ‘public interest’ defence
- a ‘scientific or academic peer review’ defence.
The public interest defence addresses earlier difficulties experienced by defendants to defamation proceedings in raising the defence of qualified privilege. The defence offers a protection to journalists and media organisations in circumstances where they are fairly covering matters of public concern. In a similar vein, the scientific or academic peer review defence will apply to independent peer reviewed commentary to ensure academic debates can occur without fear of litigation.
Cap on damages for non-economic loss
The Act prescribes a maximum amount of damages that can be awarded for non-economic loss. However, a court has a discretion to order a greater amount than the maximum where it is satisfied that the circumstances of the publication warrant an award of aggravated damages.
In response to a number of recent cases in which these provisions appeared to be applied in conflicting ways, the reforms amend the Act to:
- confirm that the cap on damages for non-economic loss sets a scale or range, with the maximum amount to be awarded only in the most serious cases
- require that awards for aggravated damages are to be made separately to any damages for non-economic loss.
Implications and comments
These reforms are likely to have significant implications for those concerned they may have been the subject of a defamatory publication and publishers alike.
Individuals who believe they have been defamed will need to act quickly as soon as they become aware of a potentially defamatory publication, to ensure they do not fall foul of the one-year limitation period. However, they will need to carefully consider whether the serious harm threshold has been satisfied before commencing any proceedings.
It will also be important for claimants and publishers alike to ensure they comply with the specific requirements of the legislation when preparing a concerns notice or offer to make amends, as this may have significant ramifications for the outcome of a dispute.