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The defamation laws have just changed in most of Australia. Here’s why that matters

Changes to defamation laws came into effect in New South Wales, Queensland, Victoria and South Australia on 1 July and the other jurisdictions will follow suit later this year.

But does that mean we’re about to see more courageous journalism?

Simply put, yes. The changes have been welcomed by those working in the media industry as journalists can now argue that publishing a story was in the public interest, instead of relying on having to prove it was true. 

What do the new changes mean?

New South Wales Attorney General Mark Speakman, one of the architects of the laws, said the changes were important. 

“Defamation law is a difficult balancing exercise between freedom of speech on one hand, and protecting personal reputations on the other,” he said.

“I think the dial had been shifted too much against free speech in New South Wales and Australia.” 

“It was stifling responsible journalism to an extent that we don’t see in any other western country.”

The new public interest defence is based on a UK model and is expected to be most useful in cases involving high-profile public figures, such as politicians.

Former attorney general Christian Porter discontinued his defamation case against the ABC in May. 

Can journalists now publish whatever they like?

No.

National spokesperson for the Australian Lawyers Alliance Greg Barnes SC said the courts will not “reward reckless conduct or people that just make up stories”. 

So in the scenario of a politician having an extramarital affair, for example, the argument can work “to the extent that the private life impinged on politicians’ duties”, he said. 

It could be valid if the politician is thought to be using taxpayer money to fund the relationship, for example.

“But, if it is simply that the politician is having a relationship with someone, then that is not something that would be a responsible communication.” 

Attorney General Mark Speakman speaks on legislation relating to the COVID-19 pandemic at the Parliament of New South Wales in Sydney.

NSW Attorney General Mark Speakman has welcomed the changes.

AAP

“[The law is] designed to protect journalists who are writing stories about government corruption or allegations of wrongdoing by officials, ministers or the military.”

On top of that, the journalist needs to prove their claims were not baseless or reckless, even if they were later found to be false.

For this there is a set criterion, according to Mr Speakman, to help a jury (or judge, depending on the state) decide if the story was in the public interest.

“[This includes] the seriousness of the imputation, the integrity of sources, whether there was an attempt to obtain the other side of the story, and what steps were taken to verify the information,” he said.

“These will be jury questions, so you are relying on the common sense of people’s peers.”

What about other high-profile people?

This is where it gets a bit trickier and the public interest defence may be argued in court.

There is an argument on one hand that due to a celebrity’s high profile, for example, the allegations surrounding them are in the public interest. On the other hand, it can be argued the laws were intended only for those using public funds.

In referencing recent high-profile cases Mr Barnes said they “will be decided on a case by case basis”. 

“I think in the Geoffrey Rush case and the Rebel Wilson case, the question of whether there is a defence of responsible communication is much more complex than it is in cases such as Christian Porter, as he’s a public official,” he said.  

Australian actor Rebel Wilson

Australian actor Rebel Wilson sucessfully sued Bauer Media for defamation.

AAP

“In the Geoffrey Rush case, you may be able to argue that it is in the public interest, simply because of his high profile and because of the nature of the allegations that were made.”

“On the other hand, there would be strong arguments to say this is not what is meant by public activities.”

In short, we need to wait and see, as the first few cases tried under these laws will establish a precedent for how broadly the court will interpret the public interest defence.

It is important to note the allegations of inappropriate behaviour made against Geoffrey Rush were found to be “not credible or reliable” in court.

How do these changes affect more low-profile matters?

Legal experts say it means more trivial matters will not make it to court under the changes.

There is a new process aimed at settling matters outside of court, which is targeted at small claims where legal costs often outweigh possible damages.

At the outset of proceedings, the onus will be on the plaintiff (the party which says they have been defamed) to prove that the matter has caused serious harm to the reputation of the person.

Mr Speakman said this is designed to “unclog” the court system, which he said is needed as NSW’s “rate of defamation litigation is about 10 times what it is in London, for example”. 

“The majority of defamation cases are at the low end of the scale, involving low amounts of money, and they are best settled without going to court,” he said.

“And when they do end up in court, the tail wags the dog, the costs become the driver of the case rather than the underlying dispute.”

The new laws will only apply to articles published after 1 July 2021. For online articles, defamation claims must be made within 12 months from the date of first publication

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