First look at Australia’s defamation laws
LAWS will be overhauled to push potential defamation litigants to settle over a coffee or barbie than in court with social media creating an "explosion in backyard actions" that were clogging courts and failing public interest journalism.
In a detailed document to be presented to Attorneys-General nationally next week, NSW Attorney-General Mark Speakman has set out a timetable for change to protect not just the media but "ordinary citizens" suing each other over trivial Facebook posts.
It is these cases that represent the significant majority of defamation litigation in Australia, prompting the NSW Government to take the lead on reforms given Sydney has emerged over the past two years as the defamation capital of the world.
His multi-point plan, based on the best of legislation in action in the UK and New Zealand, is expected to be adopted by all states and be "parliament ready" across the country by July 2020, critically turning the table on those litigants out to make a quick buck.
"It's time to recalibrate free speech," he said.
"You can see there is a general sense that the balance is out of whack. You don't want reckless journalism but you can see there is a fear responsible journalists who take precautions and publish in a public's interest could be unduly exposed to litigation and we know the number of defo claims per head in Australia exceeds comparable countries and certainly NSW, Sydney certainly appears to be the defamation capital of the world.
"But this not just about the media but also for Joe public given much of the defamation is ordinary people."
Mr Speakman would not go into detail, with final drafting not likely before December, but it is understood the pro-free speech package of reforms to be taken to the Council of Attorneys-General (CAG) meeting in Adelaide next Friday include:
•A new public interest defence, modelled on NZ common law, if something is published and deemed reasonable and responsible;
•A mandatory list of criteria, if deemed relevant, to be taken into account by a jury, including the seriousness of imputation, the extent of distinction between suspicion, allegation and proven fact and compliance with press codes;
•A new defence for republished peer review of academic and scientific publications;
•A new damages scale;
•A compulsory 'concerns notice' for litigation, to identify defamatory remarks with a 14 - day cooling off period before someone can sue to allow parties to reach settlement without court and
• Inclusion of a 'serious harm' threshold to reputation, based on the UK test as well as a defined actual financial measurable loss test for corporations
Another aspect proposed will be the adoption of the UK test for extending defamation limitation periods from one year to three years.
Mr Speakman said the current defamation regime was drafted in 2005 when MySpace dwarfed Facebook and Twitter and Instagram didn't exist so were woefully outdated in the now digital age.
"I acknowledge that this reform would leave aggrieved parties who don't reach the serious harm threshold without a remedy, apart from shaking hands and making up. But the costs of defamation claims often massively outstrip the damage caused by actions that could be solved better over a coffee or barbecue," he added.