From 1 July 2021, the Defamation Act 2005 (Qld) (Act) has been amended to incorporate a number of important changes to the process of pursuing defamation claims including by:
- introducing a serious harm threshold;
- making it mandatory to send concern notices;
- clarifying damages for non-economic losses; and
- providing additional defences to defamation.
In addition to the amendments made to the Act, amendments have also been made to the Limitation of Actions Act 1974 (Qld) making it clear that the 1 year limitation period for bringing defamatory proceedings commences on the date the defamatory material are first published and that for subsequent publications, unless the manner of the publication is substantially different to the first publication, the 1 year limitation period commences from the date of the first publication.
Serious harm threshold
Previously in actions for defamation, it was not necessary to prove loss. Once defamation was established, then loss was assumed. Under s 10A of the Act a plaintiff will now have the onus of proving that the publication of the defamatory matter has caused or is likely to cause serious harm to their reputation.
For those corporations who are eligible to bring defamation actions (generally not-for-profit companies and companies with fewer than 10 employees), they will need to show that the publication has caused, or is likely to cause, serious financial loss.
There is currently no definition in the Act as to what constitutes serious harm nor has there been a case considering the new serious harm threshold under the Act or the similar provisions that have been implemented in New South Wales, Victoria and South Australia.
It should also be noted that the determination of the serious harm issue may be determined either as a pre-trial issue or during the trial on the judicial officer’s own motion or on the application of a party.
Mandatory use of concerns notices
Section 12A of the Act makes the use of concerns notices compulsory. On receipt of a concerns notice the recipient will have 28 days in which to consider their position and whether to make an offer of amends before the aggrieved party is able to commence proceedings. The 28 day period may be extended where a recipient makes a request for further particulars. The concerns notice must be in writing, specify the location where the matter in question can be accessed (such as the webpage where the recipient’s statements have been published), state the defamatory imputations and the harm that the aggrieved person considers to be serious harm to the person’s reputation (for corporations they need to note the financial loss incurred). Where practical a copy of the defamatory comments should be included with the concerns notice.
If a recipient chooses to make an offer to make amends then that offer must be in writing, be open for acceptance for a minimum of 28 days, clearly specify any limitations of the offer in respect of the imputations made, must include an offer to publish a reasonable correction or clarification about the matter in question, must include an offer to take reasonable steps to advise third parties in receipt of the information of the defamatory natures of the information and include an offer to pay the expenses of the aggrieved person.
Damages for non-economic losses
Under the Act damages for non-economic loss are currently capped at $421,000 for non-economic loss noting that the Act now specifies that this is a maximum amount which must only be awarded in the most serious cases. Additionally, s 35 of the Act now expressly requires that aggravated damages (if applicable) must be provided for separately from awards for damages for non-economic loss.
Amendments to the defence of contextual truth
The defence of contextual truth has been amended to specifically allow defendants to rely on imputations complained of by a plaintiff being substantially true and overcome the difficulty presented by the previous wording which required defendants to rely only on imputations not raised by a plaintiff.
Defence of public interest
A new defence of public interest has been inserted to protect journalists and media organisations in circumstances where they are fairly covering matters of public interest. In determining whether the defence is made out a Court will look at a number of factors including the seriousness of the defamatory imputations, the extent to which the published material distinguishes between facts, suspicions and allegations, the importance of freedom of expression in the discussion of issues of public interest, if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential, the sources (including their integrity) for the information published, what steps were taken to verify the information or whether the published material contains the aggrieved persons side of the story and if not whether reasonable attempts were made to obtain a response from them.
Defence of scientific or academic peer-review
A new defence has also been inserted to cover statements published in scientific or academic peer-reviewed journals provided it can be established that:
- the matter was published in a scientific or academic journal (electronic or hard copy);
- the matter relates to a scientific or academic issue
- an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by:
- the editor of the journal if the editor has expertise in the scientific or academic issue concerned; or
- 1 or more persons with expertise in the scientific or academic issue concerned.
This defence will be defeated however if a plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.
Effect of these changes
The changes noted above has significant consequences for both those parties who believe they are the subject of defamatory material and a person being accused of making defamatory statements.
If you become aware of defamatory statements being made against you, you will need to consider the requirement to prove serious harm and ensure that you act quickly to avoid the 1 year limitation period. It is also important that the process set out in the Act is followed both in order to attempt to resolve the matter out of Court and be able to bring proceedings in the event such resolution is not achieved.
For persons being accused of making defamatory statements there are now additional defences that will need to be considered as well as specific steps that will need to be followed on receipt of a concerns notice and in making an offer to amends.
If you have any questions regarding the amendment of defamation laws or specific advice regarding your matter, please contact Rostron Carlyle Rojas Lawyers: