How your postcode could affect your success in a defamation case

Defamatory publications rarely stop at state and territory borders. But Australian defamation laws do – and where you live could affect your success in court.

From July 1, the defamation laws in NSW and the ACT are changing in tandem to introduce new defences, including a defence to help Facebook page administrators fend off costly claims over comments by others.

Victoria is among the states expected to follow suit shortly, but some jurisdictions won’t. The differences in the law mean in theory it is easier to bring, and win, a defamation claim in some parts of the country than others.

University of Sydney Professor David Rolph, an expert in defamation law, said that “in a country of 27 million people it’s not really defensible to have substantially different defamation laws” in the states and territories.

“Disconformity increases cost and complexity and might encourage forum-shopping,” Rolph said.

Forum-shopping involves a plaintiff bringing their claim in the jurisdiction they consider most likely to deliver them a favourable outcome.

Increasing confusion

It hasn’t always been as confusing. In 2006, every state and territory in Australia introduced near-identical laws to create an almost uniform system of defamation laws across the country.

For the next 15 years, Australia had close to perfect uniformity in defamation laws across the country. But cracks emerged in 2021, and again this year.

Three different sets of law

From July 1, there will be different sets of defamation law in Australia:

• The law in NSW and the ACT, which includes two waves of changes to the 2006 law;
• The law in Victoria, Queensland, South Australia and Tasmania, which includes the first wave of changes only;
• The law in Western Australia and the Northern Territory, which has not changed since 2006.

While Victoria, Queensland and Tasmania are expected to catch up with NSW and the ACT and pass identical legislation shortly, South Australia will only adopt some of the changes, so there will remain three different laws across the country.

Sydney is Australia’s defamation capital and has emerged as one of the defamation capitals of the world.

The first wave of changes

Disunity first set in when Western Australia and the Northern Territory opted out of changes made in every other state and territory in 2021, after a reform process led by NSW. The majority’s changes included:

• A serious harm threshold, which requires a plaintiff to show an allegedly defamatory publication “has caused, or is likely to cause, serious harm” to their reputation to bring a claim. This was designed to discourage trivial lawsuits, which are sometimes referred to as “backyard” claims.
• A new public interest defence, first tested in former special forces soldier Heston Russell’s Federal Court successful defamation case against the ABC over reports suggesting he was involved in a war crime in Afghanistan. The defence, which was rejected in that case, protects publications on “an issue of public interest” if a defendant can prove they “reasonably believed” the publication was in the public interest. It was introduced chiefly to protect investigative journalism, but proving a belief was reasonable is likely to be difficult in some cases.
• Changes aimed at reducing payouts. This clarified that general compensatory damages are capped at a specific dollar figure, and the maximum amount “is to be awarded only in a most serious case”. The capped amount changes annually, and it will increase from $459,000 to $478,500 on July 1. Other types of damages, including aggravated damages and damages for proven economic loss, may be awarded on top.
• A new requirement aimed at encouraging matters to resolve outside court, which requires a would-be plaintiff to send a “concerns notice” to a prospective defendant setting out their grievances before they can commence litigation. This is designed to enable remedial action to be taken within a specified time period before the dispute can be escalated to a court case.

Network Ten and Lisa Wilkinson could not deploy the public interest defence in Bruce Lehrmann’s Federal Court case against the network and the high-profile presenter because the former Liberal staffer sued over an interview aired in February 2021. The laws did not change until July. But it is not clear that the defence would have succeeded in that case, either.

The second wave

From July 1, NSW and the ACT are changing the law again to include:

• A new defence that makes it easier for Facebook page administrators to fend off defamation claims over comments posted by others on their page, if they have an accessible complaints mechanism and take steps within seven days to prevent access to the post. The defence has broader application, but it is a response to a prominent case about Facebook comments.
• Exemptions from liability for some online publishers, such as search engines generating non-sponsored links to websites they did not create. The changes are aimed at discouraging litigation against “passive” publishers, such as Google, and returning the focus to “the original poster of the allegedly defamatory material”, one of the architects of the laws, NSW Solicitor-General Michael Sexton, SC, has said.
• Greater protections to prevent sexual assault complainants and others being sued over reports to police. This was a change led by Victoria, while the others were led by NSW. It provides a complete immunity from lawsuits. The defence of qualified privilege already covered such complaints, with some limits, but proponents argued extending the defence of absolute privilege to these complaints would remove a barrier to reporting.

Queensland and Tasmania committed to the second round of changes, but it is not clear when it will pass legislation to effect them. Victoria is also committed to the changes and introduced a bill in state parliament in May, which is expected to become law around August.

The South Australian Attorney-General, Kyam Maher, said in state parliament in May that the state was “not implementing all the reforms that deal with ... internet publishing”. SA is expected to introduce the changes relating to complaints to police “in the not too distant future”.

Plaintiff-friendly jurisdictions

Western Australia and the Northern Territory are now, in theory, the most plaintiff-friendly jurisdictions in Australia because a claimant does not need to wait and issue a concerns notice before suing, and does not need to prove serious harm to reputation to bring a defamation suit. In addition, defendants cannot rely on any of the new defences including public interest.

South Australia is also set to be a more favourable jurisdiction for plaintiffs than the eastern states because it is not introducing some of the new exemptions or defences relating to online publications.

West Australian Liberal senator Linda Reynolds, who was born and raised in Perth and has her electorate office in Rivervale, is suing her former staffer Brittany Higgins and her husband David Sharaz for defamation in the WA Supreme Court over social media posts.

Reynolds does not have to establish that the allegedly defamatory posts have caused, or are likely to cause, serious harm to her reputation in order to bring the claim. Higgins and Sharaz cannot rely on defences such as public interest, but it is unlikely that defence would have been useful in that case.

“The effect of the first stage of the reforms [in 2021]… was to make suing for defamation more difficult for plaintiffs by introducing serious harm to reputation as an element of the cause of action,” Rolph said.

“In Western Australia and the Northern Territory, where those reforms are yet to be enacted, it is obviously easier for plaintiffs to bring a claim in defamation.”

No ‘genuine consensus’

The changes to the law in 2021 and this year were led by NSW.

Dr Michael Douglas, a defamation lawyer at Perth firm Bennett, said: “I think that the NSW-led reforms, although they got attorneys-general to agree, didn’t have a genuine consensus.

“I’ve been a critic of the process for a while. I don’t think the rest of the country truly came with them. Different states have different priorities.”

Douglas said the fact that plaintiffs in WA and the NT did not have to issue a concerns notice and wait before launching a defamation case was a “huge advantage”, but it was not yet clear if defences such as public interest were “going to make any real difference”, as they had not yet been tested fully.

The serious harm requirement “will have its biggest impact ... on the small fry matters” rather than larger disputes, Douglas said.

Which law applies?

There is a risk that the difference between the laws will encourage forum-shopping. A well-advised plaintiff would choose to bring their claim in the jurisdiction with the most favourable laws.

However, Rolph noted there is a provision in the law in all states and territories that may discourage forum-shopping: a court must apply the defamation law of the state or territory with the “closest connection” to the harm allegedly caused by the publication if it crosses jurisdictional lines.

In considering which law to apply, the court may take into account a range of factors, including where the plaintiff lives and the extent of the publication in each state or territory.

The Perth-born Reynolds is closely tied to WA professionally and personally. It is not surprising that she is suing in her home state, but it does have its advantages.

New laws?

Douglas said he would support the laws being considered afresh at a national level by the Australian Law Reform Commission, and potentially enacted by the Commonwealth.

While there were questions about the extent of the Commonwealth’s power to legislate in this area, he noted the vast majority of defamation now involved the internet and “if the Commonwealth were to take the reins it would [likely] cover 90 per cent plus of defamation litigation in Australia”.

Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.