On 26 November 2020, the South Australian government passed changes to the Defamation Act 2005 (SA) (Act).
The amendments are a response to the vast changes that have occurred in technology and digital media since 2005, which is when the Act first came into force. With the shift from print media to digital media and publication of content via social media platforms such as Facebook and Twitter, defamation litigation has also shifted. The amendments are viewed as a means to better reflect the changing defamation landscape and to curb the rise in the number of cases and the value of damages awarded in defamation litigation.
Namely, some significant changes include:
A “public interest” defence will be available to defendants if they can show the publication is a matter that concerns public interest, and they reasonably believed it did. Another defence will be available for publications of a defamatory matter that is classed as matter relating to a scientific or academic issue. This defence will only be available to defendants after an independent review of the matter’s merit is carried out.
The serious harm threshold provides that a publication is only defamatory to the extent it has caused or is likely to cause serious harm. The serious harm threshold can be determined at any time before the trial commences, and the judicial officer can make any orders it considers appropriate, including dismissing the proceedings, if satisfied that the serious harm threshold cannot be met. It is anticipated that this threshold will encourage the early resolution of defamation proceedings.
The single publication rule changes the current limitation period for defamation actions, in that currently the publication date for online content is the date on which the material is downloaded, rather than the date it was first published. The single publication rule instead adopts the position that publication occurs on the upload of the material, rather than the download. Also, the limitation period will be unaffected by subsequent publications of substantially the same content.
Under the new amendments the provisions relating to damages for non-economic loss have been amended and maximum damages will only be awarded in the most serious cases. The court does not have discretion to exceed the maximum damages, however, the court can award a separate sum for aggravated damages if it is warranted in the circumstances.
The changes also require a plaintiff to seek leave before further proceedings can be brought in respect of the publication of the same or like matter against a defendant or associate of a previous defendant. Previously, plaintiffs were able to circumvent the damages cap by bringing multiple proceedings against related entities for substantially the same publication.
Whilst the South Australian government has assented the Bill, the date these amendments come into force is unknown.
What to watch
The above changes relate to the first stage of defamation law reform for the State. A second stage of reform is underway targeting the liability of social media companies for defamatory content published on their sites. The second stage of the reform will seek to broaden the definition of a publisher, so that large social media companies will be subject to the same liabilities faced by general media entities.
It is anticipated that these reforms will be introduced in the near future. DMAW Lawyers will keenly watch and keep you up to date on any progress in the defamation law reform space.
This article provides general comments only. It does not purport to be legal advice. Before acting on the basis of any material contained in this article, we recommend that you seek professional advice.
Zoe Vaughan, Lawyer in our Disputes Team
Direct Telephone: +61 8 8210 2256