Important changes to NSW defamation law – January 2003
In brief: The Defamation Amendment Act 2002 (NSW), which will commence operation on a date to be proclaimed, effects a number of potentially important changes to the law of defamation in New South Wales. Partner Roy Williams reviews the key points of the legislation.
Coming into effect
The changes contained in the new Act are not retrospective. In general terms, the new provisions will apply only to defamatory material published after the date of commencement of the Act. It is not certain when the Act will be proclaimed; however it is understood that certain discussions are still taking place within the NSW State Government.
Key points
In brief, the changes are as follows:
Corporations cannot sue for defamation
Most corporations may no longer sue for defamation. There is an exception for corporations that employ fewer than 10 persons and that have no subsidiaries. Although corporations have not frequently prosecuted actions for defamation in NSW in recent times, at least as a sole or primary remedy, such actions have certainly not been unheard of. The abolition of the right is an important development.
Early resolution of disputes
One aim of the legislation is to encourage the early settlement of disputes involving alleged defamation. A regime has been put in place enabling publishers to make a so-called 'offer of amends' at an early stage of the dispute. Such an offer must include, among other things, an offer to publish a reasonable correction and apology and payment of the complainant's expenses. Failure by a complainant to accept such an offer may afford the publisher a defence if the dispute is litigated and the court considers that in all the circumstances, the offer was reasonable. The requirements of the 'offer of amends' procedure are highly technical and it is questionable to what extent many aspects of the regime will be workable in practice.
Defence of statutory qualified privilege
This defence is contained in s22 of the Defamation Act 1974 (NSW), and has rarely been relied upon successfully by defendants, especially media defendants. The court is now empowered to take into account a number of factors in deciding whether the publisher's conduct was reasonable in the circumstances. It is doubtful if the express enumeration of these factors alters the existing law.
Costs
In awarding costs, the court is now expressly empowered to have regard to:
- the way in which the parties conducted their cases (including any misuse of a party's superior financial position to hinder settlement); and
- whether the costs in the proceedings may exceed the quantum of damages to be awarded.
Further, the court is required to award costs to the successful party on the more generous 'indemnity' basis if the other party has unreasonably failed to make or to agree to a settlement offer. The court is given an apparently very broad discretion to decide whether conduct was 'unreasonable'.
Limitation period
An action for defamation must now be brought within one year of the date of publication. The limitation period was previously six years. The court now has a discretion to extend the period to up to three years if it decides that it is 'just and reasonable' to do so.
We will continue to monitor the introduction of the Act and will keep you informed of any developments. If you have any concerns regarding this new legislation or any other defamation matter, please feel free to contact us.
For further information, please contact:
- Peter O'DonahooPartner,
Melbourne
Ph: +61 3 9613 8742
Peter.ODonahoo@aar.com.au - Peter JamesPartner,
Brisbane
Ph: +61 7 3334 3360
Peter.James@aar.com.au - Belinda ThompsonPartner,
Melbourne
Ph: +61 3 9613 8667
Belinda.Thompson@aar.com.au
