Australian Uniform Defamation Laws 

Defamation is a common law tort governed by the Uniform Defamation Laws enacted across Australian States and Territories in 2005 and 2006. Under the Uniform Defamation Laws a publication will be defamatory if the published material has consequences of: 

1. Exposing the person to ridicule; or
2. Lowering the person’s reputation in the eyes of members of the community; or 
3. Causes people to shun or avoid the person; or
4. Injures the person’s professional reputation. 

Defamatory material will be considered to have been ‘published’ where it was communicated to someone other than the aggrieved person. The means of communication may be oral, written or through conduct - and includes electronic or online communication, postings on Facebook, twitter and other social media online forums. 

This article provides an overview of the national Uniform Defamation Laws and discusses the following:
Limited rights of corporations to sue for defamation
Remedies - cap on non-economic loss and abolition of exemplary or punitive damages
Limitation Period
Abolition of the distinction between slander and libel;
Single cause of action;
Offer of amends
Defences

Limited rights of corporations to sue for defamation

The Uniform Defamation Laws provide that a corporation has no cause of action for defamation unless at the time of the publication of defamatory matter, the corporation is either a non-profit organisation or, has fewer than 10 employees and is not related to another corporation, and the corporation is not a public body ("the excluded corporation"). [1] This represents a significant change to the corporation's common law right to sue for defamation on the basis that the publication of defamatory matter is likely to injure its reputation in the way of its business.

Despite this statutory limitation on the right of corporations to sue for defamation, a defamed corporation which is not an excluded corporation may be able to rely on an action for injurious falsehood, sometimes called malicious falsehood or trade libel, [2] if it can be established that a malicious and false publication has injured its business or goods, and has caused it to suffer financial loss. Such malicious and false statement may or may not disparage the corporation's reputation.

The interests protected by an action for defamation and an action for injurious falsehood are different in that the former protects a person's reputation and the latter protects a person's business. [3] Injurious falsehood includes slander to goods and slander to title but is not confined to those forms of action. The object of injurious falsehood is to provide a person with a remedy for false and malicious statements which have caused him damage as distinct from disparaging his reputation. Therefore, the essential requirements for an action in injurious falsehood are proof of falsity and malice and proof of financial loss. [4]

In addition, the publication of defamatory matter may contravene various provisions of the Australian Consumer Law (which forms part of the Competition and Consumer Act (2010) (Cth) and the Fair Trading Acts of each State and Territory) [5], if the publication is made in trade or commerce and is misleading and deceptive or is likely to mislead or deceive [6]. 

The Uniform Defamation Laws do not affect the right of an individual associated with a corporation, such as the public face of the corporation, to sue for the publication of defamatory matter about that individual even if the publication of the same matter also defames the corporation.

Remedies

The usual remedies available to the plaintiff in an action for defamation are damages for non-economic (reputational damage) and/or economic loss and in appropriate cases, injunction.

The Uniform Defamation Laws impose a cap on general damages for non-economic loss which, at the date of this Article, is $366,000. [7] This amount is to be adjusted annually.

The Uniform Defamation Laws also permit a court to award damages in excess of the maximum amount if it is satisfied that the circumstances of the case warrant an award of aggravated damages.[8]

Limitation period

The Uniform Defamation Law in each State and Territory imposes a limitation period for civil action for defamation of 1 year following the publication, with possible extension in limited circumstances up to 3 years with the leave of the court. [9]

Abolition of the common law distinction between libel and slander

The Uniform Defamation Laws do not distinguish between slander (ie, defamation in oral or other transient form) and libel (ie, defamation in written or other permanent form) as was the case at common law. As a result, publications of defamatory matter of any kind are actionable without proof of special damage in all Australian jurisdictions.[10]

A single cause of action

The Uniform Defamation Laws provide that a person has a single cause of action for defamation in relation to the publication of defamatory matter about him (considered as a whole) even if multiple defamatory imputations are carried by the matter [11].  

Offer of amends

The Uniform Defamation Laws set out the procedure for making offers to amend by publishers to the aggrieved persons, including where a publisher has been given a written concerns notice by the aggrieved person. These provisions can be used to resolve disputes without litigation. [12]

A concerns notice from the aggrieved person should be drafted with sufficient precision so as to inform the publisher of the defamatory imputations that are considered to be conveyed by the matter complained of. A publisher can seek further details from the aggrieved person if the concerns notice does not particularise the defamatory imputations in question.

An offer to make amends may be withdrawn before it is accepted and a renewed offer can be made after withdrawal of the earlier offer [13].  If a publisher has carried out the terms of an offer accepted by an aggrieved person, the latter cannot assert, continue or enforce an action against the publisher in relation to the matter complained of even if the offer was limited to any particular defamatory imputations. [14]

If an aggrieved person does not accept an offer which is in all the circumstances a reasonable offer, the publisher may rely on it as a defence to a defamation action brought by that aggrieved person. This defence will involve an assessment by the court as to whether or not an offer to amend is reasonable. [15]

However, the Uniform Defamation Laws also provide that a publisher or an aggrieved person is not prevented from making or accepting a settlement offer in relation to the published matter in question, otherwise than in accordance with the provisions regarding ‘offers to make amends’. [16]

Defences

The Uniform Defamation Laws also contain statutory defences which operate in addition to the defences available under the common law and other specific legislation. [17]

Defence of Justification: s25

Under the Uniform Defamation Laws, the truth of the publication is a complete defence to defamatory imputation. The defendant only needs to prove that the defamatory imputations conveyed by the matter complained of by the plaintiff are substantially true, namely, true in substance or not materially different from the truth. [18] It is no longer necessary to prove that the publication is in the public interest or for public benefit, which was previously required in some jurisdictions.

Defence of Contextual truth: s26

The Uniform Defamation Laws provide a contextual truth defence to the publication of defamatory matter if the defendant can prove that the matter carried, in addition to the defamatory imputations alleged by the plaintiff, one or more other imputations which are substantially true (the contextual imputations), and that the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. [19] 

Honest opinion: s31

The Uniform Defamation Laws made honest opinion and innocent dissemination new statutory defences. The defence of honest opinion relates to the publication of matter that is an expression of opinion honestly held by its maker, as opposed to statements of fact. Such opinion must concern a matter of public interest and must be based on proper material.

The honest opinion defence is defeated if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published.

Innocent Dissemination: s 32

The statutory defence of innocent dissemination is modelled on the equivalent common law subordinate distributor defence. [20]. The Uniform Defamation Laws clarify the positions of a defendant who provides Internet and other electronic and communication services. [21] 

The defence of innocent dissemination is available if the defendants can prove that they were not aware that the publication was defamatory, that this ignorance was not due to their own negligence and that there were no grounds for supposing that the publication was defamatory. [22]

Defendants, such as broadcasters of live programs and owners and/or operators of websites, online forums and search engines (such as Google and Yahoo) may be treated as subordinate distributors of any defamatory materials and may rely on the innocent dissemination defence in an action for defamation, unless it can be shown that the defendants were the author or originator of the defamatory material or that they had the capacity to exercise editorial control over such matter and/or that they had the ability to remove/take down such material upon receiving a request for removal.  [See recent decisions in Trkulja v Yahoo! and Trkulja v Google] [23]   [Read more… ]

Summary

The Uniform Defamation Laws aim at achieving a balance between effective protection of persons whose reputations are harmed by the publication of defamatory matter, and the need to ensure that the law of defamation does not place unreasonable limits on freedom of expression and discussion of matters of public interest and importance.

Although the Uniform Defamation Laws in Australia are now essentially uniform, the existence of the separate jurisdictions, the cross border publications, Internet and international publications and communications continue to make issues relating to choice of law and choice of jurisdiction important concerns for parties in a defamation dispute. [24] 

For further information contact:
Stephens Lawyers & Consultants
Suite 205, 546 Collins Street
Melbourne VIC 3000
Phone: (03) 8636 9100
Fax: (03) 8636 9199
Email: stephens@stephens.com.au
Website: www.stephens.com.au
Stephens-Klaric Legal Pty Ltd (ACN 117 672 376) trading as Stephens Lawyers & Consultants

All Correspondence to:
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Melbourne VIC 8007

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Disclaimer: This article is not intended to be a substitute for obtaining legal advice.

© Stephens Lawyers & Consultants. 2015. This article is an updated version of a 2006 SLC newsletter article which was researched and written by Linda Huan. Updates authored by Katarina Klaric and Rochina Iannella. [Read the full, original 2006 article…]

[1] s 9 of the Defamation Act in Vic, NSW, SA, WA, TAS, Qld,. Civil Law (Wrongs) Act 2002 (ACT): s 121; Defamation Act 2006 (NT): s 8
[2]Joyce v Sengupta & Anor [1993] 1 All ER 897
[3]Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694
[4]Joyce v Sengupta & Anor, above n5 at 901 per Sir Nicholls V-C
[5]  For example, Competition and Consumer Act 2010 (Cth) Sch 2 ss 18 and 29; section 9 of the Fair Trading Act 1999 (Vic).
[6] Australian Ocean Line Pty Ltd v West Australian Newspapers Limited & Anor (1985) Aust Torts Reports ¶80-745; 58 ALR 549
[7] S35: Vic, NSW, Qld, Tas, WA; s32: NT; s139F: ACT; s33: SA
[8] Another legislative change was the abolition of exemplary or punitive damages. Prior to this amendment, in all jurisdictions other than New South Wales, a plaintiff could obtain an award for exemplary damages in a defamation proceeding. Such exemplary and punitive damages were abolished under the Uniform Defamation Laws. [S37: Vic, NSW, Qld, Tas, WA. s34: NT; s139H: ACT; s35:SA]
[9]  The imposition of a shorter limitation period for starting defamation proceedings is regarded as necessary to ensure "prompt and effective vindication of reputation and the resolution of disputes". [Defamation Bill 2005 Explanatory Notes, State of Queensland 2005]
[10] Prior to the Uniform Defamation Laws, the common law distinguished between libel and slander.  This meant that, in contrast to an action for libel, a plaintiff had to prove special damage he had suffered in order to succeed in an action for slander.  In four exceptional cases, damage for slander was presumed where defamatory matter conveys imputations of the plaintiff committing criminal offence, having infectious disease, or slander of a person in the way of his profession or business, slander of unchastity in the case of female plaintiff. See Kerr v Kennedy [1942] 1 KB 409 at 411 per Asquith J.
 [11] The introduction of the single cause of action provision represents a significant departure from the previous law in New South Wales which allowed each defamatory imputation to be used as the basis of a separate cause of action. [Defamation Act 1974 (NSW): 29(2)].  The Uniform Defamation Laws have adopted the common law approach to causes of action that has been applied in Victoria, Western Australia and South Australia, namely, that the publication of defamatory matter as a whole gives rise to one cause of action in defamation. [See s8 of the Defamation Act in each State; s7:NT; s120: ACT];
[12] See Div 1 of Pt 3 of the Defamation Act in each State. Defamation Act 2006 (NT) ss11-18; Civil Law (Wrongs) Act 2002 (ACT): ss124-131
[13] Section 16
[14] Section 17
[15] Section 18
[16] Section 12
[17] Section 24
[18] Section 25
[19] See Defamation Bill 2005 Explanatory Notes, above n13
[20]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 - In Thompson v Australian Capital Television Pty Ltd, the High Court supported a finding that innocent dissemination defence was not available to the broadcaster Channel 7, who was found as having the ability to control and supervise the making of an offending television broadcast program, therefore it was not a subordinate distributor.
[21] Explanatory Notes, above n13; cf. Thompson v Australian Capital Television Pty Ltd, above n21,
[22]McPhersons Ltd v Hickie (1995) Aust Torts Report ¶81-348
[23] Trkulja v Yahoo! Inc LLC & Yahoo! 7 Pty Ltd [2012] VSC 88;    Trkulja v Google (No 5) [2012] VSC 533 ; Also refer to Bleyer v Google (2014) 311 ALR 529
[24] See section 11: Choice of law for defamation proceedings
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