Ian Bloemendal
Partner •
Brisbane
Queensland passes major amendments to defamation laws
Queensland's new Model Defamation Provisions aim to strike a balance through the imposition of further requirements on plaintiffs and the introduction of public interest defences.
On 17 June 2021, the Queensland Parliament took the final steps in introducing important amendments to Queensland's defamation laws by passing the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021.
The amendments to the Defamation Act 2005 will take effect on 1 July, 2021, and align Queensland's defamation laws with those in New South Wales, Victoria and South Australia.
By way of a summary, those reforms include:
- a single publication rule (for multiple publications of the same defamation matter), meaning:
- the start date of the 1-year limitation period for each publication runs from the date of the first publication; and
- for an electronic publication, the first publication occurs when it is uploaded for access or sent to the recipient (rather than when it is downloaded or received);
- a requirement to issue a concerns notice prior to going to court;
- a serious harm threshold to be established by a party taking action for defamation – failing which there may be cost consequences to the plaintiff;
- two new defences, including a public interest defence and a defence applying to peer-reviewed statements/assessments in a scientific or academic journal; and
- greater clarification around the cap on damages for non-economic loss, setting the upper limit on a scale and applying regardless of whether aggravated damages apply.
Next steps for defamation law in Queensland
The one-year limitation period in the context of the single publication rule means that prospective plaintiffs should act promptly upon becoming aware of a defamatory publication. Additionally, it will be important to articulate the defamatory imputations as clearly and accurately as possible in a concerns notice, and this warrants advice from experienced practitioners.
In addition, while the new serious harm threshold will give some potential plaintiffs pause for thought before filing a defamation claim, the serious harm threshold will likewise need to be considered by publishers both before publication and upon receipt of any concerns notice.
Defamation law is an area that is expected to remain fluid with Stage 2 of the review of the Model Defamation Provisions now under review after public submissions for Stage 2 closed on 19 May 2021. Stage 2 will consider two quite different issues in the law of defamation. Part A is concerned with internet intermediary liability for third-party content. Part B is focusing on potential legal protections for people who make statements to the Police, regulators and other relevant bodies in relation to suspected unlawful activities.
Key takeaways from the defamation reforms
Greater vigilance should now be exercised in relation to limitation periods as a consequence of the new single publication rule (this addresses the issue of "zombie defamation" that occurred when the viewing of old webpages was treated as a new publication, with a new limitation period). More focus will also need to be paid to the initial question of whether "serious harm" is likely to have been caused
As always, it is wise and economically sound to obtain legal advice from an experienced defamation lawyer prior to making any publication that risks tarnishing a person's reputation because the cost of checking can pay dividends in avoiding wasted costs in addressing concerns notices and/or litigation.
Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.