This article reviews the recent legislative changes to the State and Territory defamation laws brought by the national uniform defamation laws reform.
Following the recent national uniform defamation laws reform, the new defamation laws came into effect on 1 January 2006 in New South Wales, Victoria, South Australia, Western Australia, Queensland, Tasmania, on 23 February 2006 in Australian Capital Territory and on 26 April 2006 in Northern Territory (hereafter collectively referred to as the Uniform Defamation Laws). 
Prior to the uniform defamation laws reforms, there was little consistency in the defamation laws in each State and Territory. With the exception of Western Australia, each State and Territory had enacted legislation which specifically related to civil defamation actions.  As a result of the legislative reforms, the Uniform Defamation Laws in each State and Territory now operate in addition to the common law tort of defamation that continues to apply. Apart from some exceptions, the Uniform Defamation Laws in each State and Territory are substantially the same and contain identical numbering of sections except for South Australia, Australian Capital Territory and Northern Territory. 
The new Uniform Defamation Laws will apply to defamatory material published on or after 1 January 2006, but not to a cause of action that accrued after 1 January 2006 (“post-commencement action”) if such post-commencement action is one of two or more causes of action in proceedings commenced by a plaintiff, and each cause of action accrued because of the publication of the same or substantially the same matter prior to 1 January 2006.
The key changes brought about by the Uniform Defamation Laws are discussed as follows:
- 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
Limited rights of corporations to sue for defamation
The Uniform Defamation Laws now 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 employee and is not related to another corporation, and the corporation is not a public body (“the excluded corporation”).  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,  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 corporations’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.  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. 
In addition, the publication of defamatory matter may well be a conduct that is misleading and deceptive or is likely to mislead or deceive.  Such conduct may contravene various provisions of the Trade Practices Act 1974 (Cth) or the Fair Trading Acts of each State and Territory with respect to trade practices and therefore entitle a corporation to sue under those Federal or State Acts in relation to the publication of defamatory matter about it.  However, this cause of action is not available to a corporation which is engaged in a business of providing information, such as media outlets. 
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.
The usual remedies available to the plaintiff in an action for defamation are damages and in appropriate cases, injunction.
The previous laws of the States and Territories did not prescribe a limit on damages for non-economic loss that may be awarded to the plaintiff. The Uniform Defamation Laws now imposes a cap on general damages for non-economic loss of $250,000.  This amount is to be adjusted from time to time.
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 case warrant an award of aggravated damages.
Another legislative change is the abolition of exemplary or punitive damages. Prior to this amendment, in all jurisdictions other than New South Wales, a plaintiff may obtain an award for exemplary damages in a defamation proceeding. Such exemplary and punitive damages have now been abolished under the Uniform Defamation Laws. 
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.
Prior to the legislative reforms, only the laws in New South Wales and Australian Capital Territory provided for a one year limitation period which could be further extended. In South Australia and Western Australia, actions to libel were subject to a two year limitation period. In other cases and other jurisdiction the limitation period was generally six years.
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”. 
Abolition of the common law distinction between libel and slander
At common law, defamatory statements are classified as either libel or slander. In an action for libel (ie, defamation in written or other permanent form), the plaintiff does not have to prove damage because general damage is presumed upon proof of the publication of a libel. In contrast, subject to certain exceptions,  a plaintiff must prove special damage he had suffered in order to succeed in an action for slander (ie, defamation in oral or other transient form).
This practical distinction between libel and slander has already been abolished under the existing laws in most Australian jurisdictions, such as in New South Wales, Queensland, Tasmania, Australian Capital Territory and Northern Territory.
The Uniform Defamation Laws make it clear that the common law distinction between slander and libel is completely abolished. As a result, publications of defamatory matter of any kind are actionable without proof of special damage in all Australian jurisdictions.
A single cause of action
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. 
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. 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 even if multiple defamatory imputations are carried by the matter. 
Offer of amends
The Uniform Defamation Laws set out the procedure for making offers to amend by publishers to the aggrieved persons. These provisions can be used to resolve disputes without litigation. 
An offer to amend cannot be made if 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person or if a defence has been served in an action brought against the publisher.
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 amend may be withdrawn before it is accepted and a renewed offer can be made after withdrawal of the earlier offer.  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. 
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. 
The Uniform Defamation Laws make it clear that a publisher or an aggrieved person is not prevented from making or accepting any other settlement offer which is not made in accordance with the provisions regarding offer to amend. 
The Uniform Defamation Laws now contain statutory defences which operate in addition to the defences available under the common law and other specific legislation. 
Defence of Justification: s25
Under the Uniform Defamation Laws, the truth of the publication becomes 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.  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.  For example, if a publication conveys defamatory imputations X, Y and Z of which Y and Z are substantially true. If the plaintiff chose to sue on imputation X, but not all of the imputations, the defendant may rely on the contextual truth of Y and Z as a defence to the plaintiff’s action in respect X. It is a defence if the defendant can establish that:
- the matter conveyed additional defamatory imputations Y and Z other than imputation X alleged by the plaintiff; and
- the additional imputations Y and Z (the contextual imputations) are substantially true; and
- the defamatory imputation X do not further harm the plaintiff’s reputation because of the substantial truth of the contextual imputations.
However, it is obvious that a defendant cannot rely on the contextual truth defence if the plaintiff sues on all imputations X, Y and Z.
Honest opinion: s31
The Uniform Defamation Laws make 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 modeled on the equivalent common law subordinate distributor defence.  The common law defence has been relied upon by persons who are regarded as subordinate distributors of books or newspaper containing the defamatory material, such as newsagents, booksellers and libraries. The defence 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. 
The Uniform Defamation Laws seek to clarify the positions of a defendant who provides Internet and other electronic and communication services.  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 not a subordinate distributor.
The Uniform Defamation Laws now make it clear that the defendants, such as broadcasters of live programs and internet services providers who provide email services, 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 matter or had the capacity to exercise editorial control over such matter.
Application of the Uniform Defamation Laws
Since the commencement of the Uniform Defamation Law in each State and Territory, there has been few post-commencement defamation case where the Court can have an opportunity to consider issues involving the application of the new Law. It appears that Caccavo v Daft  has become the only post-commencement cases decided by the Court so far.
The Caccavo case concerned an application for leave to amend defence to an action for defamation in respect of publications made on 12 January 2006. Having considered the provisions in the Defamation Act 2005 (TAS) relating to defence of justification and defence of contextual truth, the Tasmanian Supreme Court dismissed the application on the ground that the pleadings in the defence of justification were defective as they had failed to allege justification of the meanings in the terms specified by the plaintiffs.
In considering the defence of contextual truth, the Court in Caccavo briefly discussed the English authority on the common law Polly Peck defence  and noted that there is doubt as to whether a Polly Peck defence forms part of the common law in Australia. The Polly Peck defence defence allows the defendant to rely on an imputation which was not pleaded by the plaintiff for the purpose of justification if that imputation shared a common sting with an imputation pleaded by the plaintiff. 
The Polly Peck defence and the defence of contextual truth was recently considered by the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Zunter . Although the Zunter case was decided under the Defamation Act 1974 (NSW), the decision is important in that the New South Wales Court of Appeal followed a number of authorities and held that the Polly Peck defence is not to be recognised by the common law of Australia. 
The introduction of the statutory contextual truth defence under the Uniform Defamation Laws is a significant change for most States (except for New South Wales and Tasmania which had similar contextual truth defence under its existing law). As a result, the ultimate rejection of the Polly Peck defence in Australia may have little adverse impact on defendants in defamation proceedings now that the statutory contextual defence has been uniformly enacted.
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 increasing need for cross border publications, Internet and international publications and communications will make issues relating to choice of law and choice of jurisdiction important concerns for parties in a defamation dispute.  The scantiness of defamation cases at this stage means the practical effect brought by the Uniform Defamation Laws in Australia is still to be seen.
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© Stephens Lawyers & Consultants. 2006. Researched and written by Linda Huan.
Defamation Act 2005 (NSW); Defamation Act 2005 (Vic); Defamation Act 2005 (SA); Defamation Act 2005 (WA); Defamation Act 2005 (Qld); Defamation Act 2005 (Tas); Civil Law (Wrongs) Act 2002 (ACT); Defamation Act 2006 (NT).
Defamation Act 1974 (NSW); Wrongs Act 1958 (Vic); Civil Liability Act 1936 (SA); Defamation Act 1889 (Qld); Defamation Act 1957 (Tas); Defamation Act 1938 (NT); Defamation Act 1901(ACT) and Defamation (Amendment) Act 1909 (ACT); Provisions in Chapter XXXV of the Criminal Code Act 1913 (WA) contain limited application to civil actions for defamation in Western Australia.
 Some of the exceptions include: the new defamation laws in South Australia, Northern Territory and ACT do not have provisions for juries in civil defamation actions; the Tasmanian Defamation Act does not have the equivalent provision for “No cause of action for defamation of or against deceased persons” which is contained in the Uniform Defamation Laws of all other States and Territories.
 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
Joyce v Sengupta & Anor  1 All ER 897
Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694
Joyce v Sengupta & Anor, above n5 at 901 per Sir Nicholls V-C
Australian Ocean Line Pty Ltd v West Australian Newspapers Limited & Anor (1985) Aust Torts Reports ¶80-745; 58 ALR 549
 For example, ss52 and 53 of the Trade Practices Act; section 9 of the Fair Trading Act 1999 (Vic).
 Trade Practices Act 1974: s65A
 S35: Vic, NSW, Qld, Tas, WA; s32: NT; s139F: ACT; s33: SA
 S37: Vic, NSW, Qld, Tas, WA. s34: NT; s139H: ACT; s35:SA
Defamation Bill 2005 Explanatory Notes, State of Queensland 2005
 In four exceptional cases, damage for slander is 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  1 KB 409 at 411 per Asquith J.
Defamation Act 1974 (NSW): s 9(2)
 See s8 of the Defamation Act in each State; s7:NT; s120: ACT;
 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
 Section 16
 Section 17
 Section 18
 Section 12
 Section 24
 Section 25
 See Defamation Bill 2005 Explanatory Notes, above n13
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
McPhersons Ltd v Hickie (1995) Aust Torts Report ¶81-348
Explanatory Notes, above n13; cf. Thompson v Australian Capital Television Pty Ltd, above n25,
  TASSC 36 (Supreme Court of Tasmania, 30 May 2006)
Polly Peck (Holdings) plc v Trelford  QB 1000;  2 All ER 84
 Ibid at 1032 per O’Connor LJ(referred to in Caccavo v Daft  TASSC 36 at )
  NSWCA 227
 Ibid at - per Handley JA
 See section 11: Choice of law for defamation proceedings