Council of Attorneys-General - Review of Model Defamation Provisions February 2019 - NSW Department of Justice
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Council of
Council of
Attorneys-General
Attorneys-General
Review
ReviewofofModel
Model
Defamation
DefamationProvisions
Provisions
February 2019
Discussion PaperTable of contents
Questions ............................................................................................................................................. 3
Glossary................................................................................................................................................ 8
1. Introduction .......................................................................................................................................... 9
Submissions ......................................................................................................................................... 9
Background ........................................................................................................................................ 10
Objectives of the Model Defamation Provisions ............................................................................. 11
2. General principles .............................................................................................................................. 12
Corporations ...................................................................................................................................... 12
The single publication rule ................................................................................................................ 14
3. Resolution of civil disputes without litigation ................................................................................. 16
Offers to make amends ..................................................................................................................... 16
Timeframe for making offers to make amends ............................................................................ 17
Offers to amend and jury prejudice .............................................................................................. 19
Other issues relating to offers to make amends .......................................................................... 20
4. The role of judicial officers and juries in defamation proceedings ............................................... 21
Concerns about the current situation ........................................................................................... 21
Constitutional inconsistency ............................................................................................................ 22
5. Defences ............................................................................................................................................. 24
Defence of contextual truth ............................................................................................................... 24
Defences for publication of public documents and fair summaries .............................................. 25
Defence of qualified privilege ........................................................................................................... 26
Defence of honest opinion ................................................................................................................ 29
Digital publications ........................................................................................................................ 31
Joinder of journalists to proceedings against media publishers ............................................... 31
Defence of triviality ............................................................................................................................ 32
Defence of innocent dissemination and safe harbours .................................................................. 34
The scope and utility of the existing defence .............................................................................. 34
Safe harbour provisions and takedown processes ..................................................................... 37
6. Remedies ............................................................................................................................................ 39
The caps on damages........................................................................................................................ 39
Multiple proceedings and consolidation .......................................................................................... 40
Potential amendments ................................................................................................................... 41
Other Issues ....................................................................................................................................... 42
Appendix 1: Terms of Reference for the Defamation Working Party .................................................... 43
Discussion Paper Page 2 of 43Questions
Question 1
Do the policy objectives of the Model Defamation Provisions remain valid?
Question 2
Should the Model Defamation Provisions be amended to broaden or to narrow
the right of corporations to sue for defamation?
Question 3
(a) Should the Model Defamation Provisions be amended to include a ‘single
publication rule’?
(b) If the single publication rule is supported:
(i) should the time limit that operates in relation to the first publication of
the matter be the same as the limitation period for all defamation
claims?
(ii) should the rule apply to online publications only?
(iii) should the rule should operate only in relation to the same publisher,
similar to section 8 (single publication rule) of the Defamation Act 2013
(UK)?
Question 4
(a) Should the Model Defamation Provisions be amended to clarify how
clauses 14 (when offer to make amends may be made) and 18 (effect of
failure to accept reasonable offer to make amends) interact, and,
particularly, how the requirement that an offer be made ‘as soon as
practicable’ under clause 18 should be applied?
(b) Should the Model Defamation Provisions be amended to clarify clause
18(1)(b) and how long an offer of amends remains open in order for it to be
able to be relied upon as a defence, and if so, how?
(c) Should the Model Defamation Provisions be amended to clarify that the
withdrawal of an offer to make amends by the offeror is not the only way to
terminate an offer to make amends, that it may also be terminated by being
rejected by the plaintiff, either expressly or impliedly (for example, by
making a counter offer or commencing proceedings), and that this does not
deny a defendant a defence under clause 18?
1.
Discussion Paper Page 3 of 43Question 5
Should a jury be required to return a verdict on all other matters before
determining whether an offer to make amends defence is established, having
regard to issues of fairness and trial efficiency?
Question 6
Should amendments be made to the offer to make amends provisions in the
Model Defamation Provisions to:
(a) require that a concerns notice specify where the matter in question was
published?
(b) clarify that clause 15(1)(d) (an offer to make amends must include an offer
to publish a reasonable correction) does not require an apology?
(c) provide for indemnity costs to be awarded in a defendant’s favour where the
plaintiff issues proceedings before the expiration of any period of time in
which an offer to make amends may be made, in the event the court
subsequently finds that an offer of amends made to the plaintiff after
proceedings were commenced was reasonable?
Question 7
Should clause 21 (election for defamation proceedings to be tried by jury) be
amended to clarify that the court may dispense with a jury on application by the
opposing party, or on its own motion, where the court considers that to do so
would be in the interests of justice (which may include case management
considerations)?
Question 8
Should the Federal Court of Australia Act 1976 (Cth) be amended to provide for
jury trials in the Federal Court in defamation actions unless that court dispenses
with a jury for the reasons set out in clause 21(3) of the Model Defamation
Provisions – depending on the answer to question 7 – on an application by the
opposing party or on its own motion?
Question 9
Should clause 26 (defence of contextual truth) be amended to be closer to
section 16 (defence of contextual truth) of the (now repealed) Defamation Act
1974 (NSW), to ensure the clause applies as intended?
1.
Discussion Paper Page 4 of 43Question 10
(a) Should the Model Defamation Provisions be amended to provide greater
protection to peer reviewed statements published in an academic or
scientific journal, and to fair reports of proceedings at a press conference?
(a) If so, what is the preferred approach to amendments to achieve this aim –
for example, should provisions similar to those in the Defamation Act 2013
(UK) be adopted?
Question 11
(a) Should the ‘reasonableness test’ in clause 30 of the Model Defamation
Provisions (defence of qualified privileged for provision of certain
information) be amended?
(b) Should the existing threshold to establish the defence be lowered?
(c) Should the UK approach to the defence be adopted in Australia?
(d) Should the defence clarify, in proceedings where a jury has been
empanelled, what, if any, aspects of the defence of statutory qualified
privilege are to be determined by the jury?
Question 12
Should the statutory defence of honest opinion be amended in relation to
contextual material relating to the proper basis of the opinion, in particular, to
better articulate if and how that defence applies to digital publications?
Question 13
Should clause 31(4)(b) of the Model Defamation Provisions (employer’s
defence of honest opinion in context of publication by employee or agent is
defeated if defendant did not believe opinion was honestly held by the
employee or agent at time of publication) be amended to reduce potential for
journalists to be sued personally or jointly with their employers?
1.
Discussion Paper Page 5 of 43Question 14
(a) Should a ‘serious harm’ or other threshold test be introduced into the Model
Defamation Provisions, similar to the test in section 1 (serious harm) of the
Defamation Act 2013 (UK)?
(b) If a serious harm test is supported:
(i) should proportionality and other case management considerations be
incorporated into the serious harm test?
(ii) should the defence of triviality be retained or abolished if a serious
harm test is introduced?
Question 15
(a) Does the innocent dissemination defence require amendment to better
reflect the operation of Internet Service Providers, Internet Content Hosts,
social media, search engines, and other digital content aggregators as
publishers?
(b) Are existing protections for digital publishers sufficient?
(c) Would a specific ‘safe harbour’ provision be beneficial and consistent with
the overall objectives of the Model Defamation Provisions?
(d) Are clear ‘takedown’ procedures for digital publishers necessary, and, if so,
how should any such provisions be expressed?
Question 16
(a) Should clause 35 be amended to clarify whether it fixes the top end of a
range of damages that may be awarded, or whether it operates as a cut-off?
(b) Should clause 35(2) be amended to clarify whether or not the cap for non-
economic damages is applicable once the court is satisfied that aggravated
damages are appropriate?
Question 17
(a) Should the interaction between Model Defamation Provisions clauses 35
(damages for non-economic loss limited) and 23 (leave required for further
proceedings in relation to publication of same defamatory matter) be
clarified?
(b) Is further legislative guidance required on the circumstances in which the
consolidation of separate defamation proceedings will or will not be
appropriate?
(c) Should the statutory cap on damages contained in Model Defamation
Provisions clause 35 apply to each cause of action rather than each
‘defamation proceedings’?
1.
Discussion Paper Page 6 of 43Question 18
Are there any other issues relating to defamation law that should be
considered?
1.
Discussion Paper Page 7 of 43Glossary
Buckley The Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661
CAG Council of Attorneys-General
IGA Intergovernmental Agreement
NSW Review Statutory Review – Defamation Act 2005 (NSW)
Reynolds Reynolds v Times Newspapers Ltd [2001] 2 AC 127
1.
Discussion Paper Page 8 of 431. Introduction
1.1 Each State and Territory in Australia has substantially uniform defamation law. The
Model Defamation Provisions were endorsed by the former Standing Committee of
Attorneys-General in November 2004 and each state and territory enacted
legislation to implement them, collectively referred to as the National Uniform
Defamation Law. The Model Defamation Provisions are available on the
Australasian Parliamentary Counsel’s Committee website at www.pcc.gov.au.1
1.2 In June 2018 the Council of Attorneys-General agreed to reconvene the Defamation
Working Party to consider whether the policy objectives of the Model Defamation
Provisions remain valid and whether the provisions remain appropriate to achieve
these objectives.
1.3 The Terms of Reference for the Defamation Working Party are set out in Appendix
1.
1.4 This chapter provides background to the Model Defamation Provisions and the
Review and assesses the continued validity of the policy objectives of the Model
Defamation Provisions.
Submissions
1.5 Submissions are invited on the questions set out in this Discussion Paper and any
related matters.
1.6 Submissions will be made public unless otherwise requested.
1.7 The closing date for submissions is 30 April 2019.
1.8 Submissions should be sent to:
policy@justice.nsw.gov.au
or
Review of Model Defamation Provisions
C/o Justice Strategy and Policy Division
NSW Department of Justice
GPO Box 31
Sydney NSW 2001
Background
1.9 Defamation in Australia is regulated by both statute and the common law. The
purpose of defamation law is to protect people’s reputation and provide a dispute
1 See https://www.pcc.gov.au/uniform/pcc-279-94-d10.pdf.
1.
Discussion Paper Page 9 of 43resolution framework to vindicate a defamed person’s reputation. Australia has
abolished the distinction between ‘libel’ (defamation in a permanent form, such as
written communication) and ‘slander’ (defamation in impermanent form, such as
speech), and both are now commonly referred to as ‘defamation’. The Model
Defamation Provisions provide the statutory legal framework for balancing freedom
of expression and freedom to publish information in the public interest on the one
hand with the right of individuals to have their reputations protected from defamatory
publications and the right to remedies for such publications on the other hand. Since
the Model Defamation Provisions were developed, the manner in which information
is published and transmitted has changed significantly, particularly with the
exponential growth in reliance on digital publications and communications,
interactive online forums and blogs. Information flows are even less bound by
territorial borders than they were when the Model Defamation Provisions were
adopted.
1.10 The NSW Department of Justice recently completed a statutory review of the
Defamation Act 2005 (NSW), the Report of which (NSW Review) was tabled in the
NSW Parliament on 7 June 2018.2 The Report concluded that the Act’s core policy
objective - balancing freedom of expression and publication in the public interest,
with protection of individuals from defamatory publications - remains valid, but that
the Act would benefit from some amendment and modernisation. This Discussion
Paper draws upon the NSW Review and submissions made to that review, and
other sources.
1.11 In 2018 the Centre for Media Transition, University of Technology Sydney,
published a report Trends in Digital Defamation: Defendants, Plaintiffs, Platforms
which reviewed defamation cases heard over the five year period to 20173 and
found as follows:
NSW was the preferred forum for defamation actions and more matters
reached a substantive decision4 in NSW than in all other jurisdictions
combined (95 cases for NSW, compared with 94 cases in all other
jurisdictions).
As well as the 189 cases with substantive decisions located through
searches, there were 609 related decisions (for example, separate rulings on
evidence). There were also 322 other matters5 in the system, including
appeals from earlier decisions and preliminary decisions on new matters.
The report acknowledged a complete picture of legal action on defamation
would include other matters that were the subject of summary dismissals
and the many matters settled before a claim is filed in court.
Of the 189 cases: 51.3% were digital cases, only 21% of the plaintiffs in
judgments could be considered public figures, and only 25.9% of the
defendant ‘publishers’ were media companies.
Overall, about a third of plaintiffs were successful.
2 See https://www.justice.nsw.gov.au/justicepolicy/Documents/defamation-act-statutory-review-
report.pdf.
3 The report considered defamation actions heard in all states and territories from 2013 to 2017
inclusive and compiled the results based on ‘cases’ rather than decisions.
4 A court decision in favour of either a plaintiff or defendant on the matter overall, and not including
costs issues, pre-trial decisions on evidence, judgments on imputations alone or, at the other end
of an action or a decision of a higher court on appeal.
5 Matters not related to a case with a substantive decision between 2013 and 2017 inclusive.
1.
Discussion Paper Page 10 of 43 Of the 87 awards of damages, 38 were for $100,000 or more.
The number of defamation cases – that is, matters for which there was a
substantive decision in that year – was almost the same in 2017 as it was in
2007 (30 compared to 29 cases). The number of decisions was the same:
131 in each year.
Objectives of the Model Defamation Provisions
1.12 The objectives of the Model Defamation Provisions are set out in clause 3. These
are to:
a. enact provisions to promote uniform laws of defamation in Australia;
b. ensure that the law of defamation does not place unreasonable limits on
freedom of expression and, in particular, on the publication and discussion
of matters of public interest and importance;
c. provide effective and fair remedies for persons whose reputations are
harmed by the publication of defamatory matter; and
d. promote speedy and non-litigious methods of resolving disputes about the
publication of defamatory matter.
1.13 The Model Defamation Provisions attempt to strike a balance between protecting
individuals from reputational damage from defamatory publications, while also
ensuring that freedom of expression is not unduly curtailed, and that information in
the public interest is released. National consistency is also a key policy objective,
and, as noted above, one that continues to be important.
1.14 The NSW Review concluded that the objectives of the NSW Act (and so the
objectives of the Model Defamation Provisions) remain valid, and that, with some
minor exceptions, its terms remain appropriate to achieve those objectives.
However, the NSW Review also concluded that the Act, and by implication the
Model Defamation Provisions, would benefit from some amendments to clarify the
application of terms, reduce ambiguity, and better articulate how some of its legal
principles apply.
Question 1
Do the policy objectives of the Model Defamation Provisions remain valid?
1.
Discussion Paper Page 11 of 432. General principles
2.1 Part 2 of the Model Defamation Provisions deals with general principles, including:
who may bring defamation actions;
the choice of law rules that apply; and
limitation issues.
Corporations
2.2 Division 2 of the Model Defamation Provisions sets out the parties that have a
cause of action for defamation. Clause 9 provides that a corporation has no cause
of action unless it is an excluded corporation at the time of the publication, being a
corporation which is not a public body and:
(a) whose objects for formation do not include obtaining financial gain for its
members or corporators; or
(b) which is not related to another corporation, and employs fewer than 10
people.
Public bodies, such as local government bodies or other government or public
authorities established by statute, cannot sue for defamation.6
2.3 Under the common law, all corporations could sue for defamation and recover
damages for financial loss. NSW legislation in 2002 precluded corporations,
including statutory bodies, from suing in libel with the only exception being a
corporation that employed fewer than ten persons at the relevant time and had no
subsidiaries. This question was subsequently considered at length in the
development of the Model Defamation Provisions.
2.4 A number of submissions to the NSW Review suggested amendments to clause 9.
Some submissions argued for narrowing clause 9’s application to preclude all
corporations from pursuing causes of action for defamation, in the interest of
promoting freedom of expression and public scrutiny of all corporate bodies.7 The
NSW Bar Association argued to expand clause 9, to permit all corporations to sue
for defamation, on the basis that corporate reputations are also critically important
and are a legitimate interest that needs to be protected.8 These submissions cited
examples from the UK in particular, where all corporations retain the right to sue.
2.5 The conclusion of the Standing Committee of Attorneys-General in 2004 that
precluding larger, for-profit corporations from suing for defamation was appropriate
and necessary to meet the overall objectives of the Model Defamation Provisions
was based on a number of reasons, including the following:
6 Clause 14 of the Model Defamation Provisions.
7. Submissions from Australia’s Right to Know, Free TV Australia, and Joint Media Organisations.
Also discussion of this proposal in the submission from the Law Council of Australia.
8. Submission from the NSW Bar Association.
1.
Discussion Paper Page 12 of 43 if corporations were able to sue for defamation, their resource capacity to
commence proceedings, including in strategic litigation against public
participation (‘SLAPP’) suits, may deter publication of material the release of
which is in the public interest;
as ‘reputation’ is principally a personal right, compensation for harm to
reputation should only be extended to natural persons; and
corporations have other options to defend their corporate reputations, such
as making complaints to the Press Council of Australia, and pursuing other
types of legal actions, including under provisions in the Competition and
Consumer Act 2010 (Cth) and for the tort of injurious falsehood.
2.6 Australia’s approach of limiting capacity to sue for defamation to only smaller
corporations differs from that of other countries with similar legal histories. For
example, in most states of the United States, a corporation can sue in defamation
where an untrue ‘actionable statement’ has been made in writing or orally to a third
person, and has caused the corporation damage. Similarly, in New Zealand, the
Defamation Act 1992 (NZ) has the effect that a ‘body corporate’ can bring a claim
for defamation where the defamatory publication has, or is likely to, cause the body
corporate a pecuniary loss.9 Canada allows corporations to sue in defamation in the
same way as natural persons, although some Canadian academics have suggested
that Canada follow the Australian approach, citing corporations’ disproportionate
resource and influence as compared to individuals having a potentially chilling effect
on free speech.10
2.7 The Defamation Act 2013 (UK) maintains the right of corporations to sue for
defamation on the same basis as natural persons (that is, only where they can
prove ‘serious harm’), regardless of their size or whether they operate for profit.
However, the UK Act does provide an effective limitation by defining ‘serious harm’
for corporate plaintiffs narrowly to mean actual or likely serious financial loss. A few
cases have considered how serious financial loss is to be established, and what
extent of loss constitutes ‘serious’. For example, it has been held that ‘serious’
financial loss for a body that trades for profit must depend on context, but, as
indicated by the damages awarded in that case (£10,000), need not be particularly
extensive.11
2.8 The decision of the Standing Committee of Attorneys-General to permit only
excluded corporations to retain the right to sue in defamation recognised that non-
profit bodies are less likely to have the resources to pursue alternative causes of
action, and that small, for-profit bodies may be disproportionately affected by a
defamatory publication and less likely to weather its consequences.
2.9 The arguments for and against restricting the rights of corporations to bring causes
of action for defamation were examined extensively in the development of the Model
Defamation Provisions. While noting that there may be circumstances in which
corporations do suffer harm because of defamatory statements, it may be that the
balance struck by clause 9 of the Model Defamation Provisions continues to be
appropriate. Submissions are invited on whether, in light of the approaches in other
9. Defamation Act 1992 (NZ), section 6.
10. See for example Hilary Young, ‘Rethinking Canadian Defamation Law as Applied to Corporate
Plaintiffs’ University of British Colombia Law Review Vol. 46 No. 2, 2013.
11. Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB).
1.
Discussion Paper Page 13 of 43countries, particularly the United Kingdom, clause 9 should be retained as is, or
whether it should be amended.
Question 2
Should the Model Defamation Provisions be amended to broaden or to narrow
the right of corporations to sue for defamation?
The single publication rule
2.10 Defamation occurs whenever a defamatory meaning is communicated to somebody
other than the person being defamed (a third party). Under the Model Defamation
provisions, a person who has been defamed has one year in which to commence
proceedings. In the case of internet materials, communication occurs whenever a
third party downloads the material. This is known as the ‘multiple publication rule.’
2.11 Several submissions to the NSW Review argued that a multiple publication rule is
ill-suited to the digital age, which allows for the wide and rapid dissemination of
publications, and that a ‘single publication rule’ should be adopted.12 However, the
single publication rule has been rejected in Australia by both the NSW Supreme
Court in McLean v David Syme & Co Ltd,13 and, more recently and in relation to
online publications, by the High Court in Dow Jones & Co v Gutnick.14
2.12 In Dow Jones & Co v Gutnick, the High Court held that the damage to reputation
giving rise to a tort of defamation will generally only occur when the publication is in
comprehensible form. In the case of internet materials, it ruled that the publication is
in comprehensible form when downloaded onto the computer of the reader. This
could have the consequence that, for the purposes of the multiple publication rule,
each time an internet user accesses and downloads information from a webpage,
this constitutes a ‘publication’ that may give rise to separate causes of action each
with its own limitation period.15 A plaintiff may therefore have a cause of action in
relation to a single matter that has been subject to multiple ‘republications’ for or
over many years.
2.13 In its submission to the NSW Review, Australia’s Right To Know noted that the
current rule poses challenges for media organisations and other companies that
maintain online archives. Australia’s Right To Know suggested that it is undesirable
for a new limitation period to commence each time a person downloads potentially
defamatory material, as the effect is to expose the publisher to potential litigation
indefinitely into the future, even if no concerns were raised or action commenced
within the year after first publication.16 This may have the unintended consequence
of deterring parties from establishing or maintaining digital archives. If defamatory
material brought to the notice of an archive publisher or internet search engine
operator continues to be published, these entities may be liable. In some European
cases, such publishers and operators have been found liable even if the original
12. For example, submission from the Communications Alliance.
13. McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 520 and 528.
14. Dow Jones & Co v Gutnick (2002) 210 CLR 575.
15. See for example: Alex v Australian Broadcasting Corporation (2015) 20 DCLR (NSW) 179; Gacic
v John Fairfax Publications Pty Ltd (2015) 91 NSWLR 485.
16. Submission from Australia’s Right To Know.
1.
Discussion Paper Page 14 of 43publisher published lawfully at the time.17 This issue is discussed further later in this
paper, in relation to the defence of innocent dissemination and safe harbour
provisions.
2.14 Submissions to the NSW Review from Australia’s Right To Know and the Law
Council of Australia also noted that permitting actions to be commenced potentially
years after first publication may also raise evidentiary difficulties.18 If actions are
effectively allowed to be brought years after first publication, evidence relevant to
both the plaintiff and the defendant may have been lost or destroyed in the interim,
which may potentially adversely affect either or both parties’ prospects.
2.15 Some other jurisdictions, including several US states, Ireland and the UK, have
adopted a single publication rule. For example, section 8 of the Defamation Act
2013 (UK) has the effect that the one-year limitation period (as with National
Uniform Defamation Law jurisdictions, subject to extension) commences on the date
of first publication by a given publisher. Any cause of action for subsequent
publications by that publisher is treated as having accrued on the date of the first
publication, unless the subsequent publication is materially different.
2.16 In the digital age, the notion of a limitation period running from the date of download
is problematic and there are arguments on both sides. On the one hand, it means
that the limitation period is effectively nullified while the material remains on the
internet. Publishers who released material years ago may remain liable even though
no issues were raised at the time of original publication and the material is rarely
accessed. On the other hand, unlike hard copy material stored in libraries or
archives, the material on the internet is more readily accessed by search engines,
and may continue to do damage into the future. In balancing these arguments, it
should be kept in mind that damages in defamation proceedings are awarded for all
probable damage, past and future, caused by the publication.19
Question 3
(a) Should the Model Defamation Provisions be amended to include a ‘single
publication rule’?
(b) If the single publication rule is supported:
(i) should the time limit that operates in relation to the first publication of
the matter be the same as the limitation period for all defamation
claims?
(ii) should the rule apply to online publications only?
(iii) should the rule should operate only in relation to the same publisher,
similar to section 8 (single publication rule) of the Defamation Act 2013
(UK)?
17. See: Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja
González Court of Justice of the European Union, C-131/12, 13 May 2014.
18. Submissions from Australia’s Right To Know and the Law Council of Australia.
19. T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Sydney, 2018,
21,001.
1.
Discussion Paper Page 15 of 433. Resolution of civil disputes without litigation
3.1 Part 3 of the Model Defamation Provisions encourages parties to pursue options to
resolve disputes concerning publication of potentially defamatory matters through
means other than litigation. The two dispute resolution options available are offers
to make amends, and apologies. Offers to make amends were raised in a number of
submissions to the NSW Review,20 and are discussed below.
Offers to make amends
3.2 Under Division 1 of Part 3 of the Model Defamation Provisions, the publisher of
potentially defamatory content may make an offer to make amends to an aggrieved
person, generally taken to be without prejudice. An offers to make amends cannot
be made if 28 days have elapsed since the aggrieved person issues a ‘concerns
notice’ (a written notice informing the publisher of defamatory imputations that he or
she is concerned have been published),21 or a defence to any action brought by the
aggrieved person has been served.22
3.3 The required content of an offer to make amends is specified in clause 15. The
required content includes offers to:
publish a reasonable correction of the matter;
take reasonable steps to tell other persons to whom the material has been
given that the material is or may be defamatory of the aggrieved person; and
pay the expenses of the aggrieved person reasonably incurred before the
offer was made, and while the aggrieved person is considering the offer.
3.4 Offers of amends may also contain any other offers, including offers to publish an
apology, and to pay compensation for any economic or non-economic loss suffered
by the aggrieved person.
3.5 Under clause 17, if an offer to make amends is accepted by an aggrieved person
and then carried out by the publisher, the aggrieved person cannot assert, continue
or enforce an action for defamation against the publisher. Under clause 18, if an
offer is not accepted, it is a defence to an action for defamation against the
publisher if:
the publisher made the offer as soon as practicable after becoming aware
that the relevant matter may be defamatory;
the publisher was, prior to trial, ready and willing to carry out the terms of the
offer if accepted; and
20. Submissions from Australia’s Right to Know, p. 6; Free TV Australia, p. 6; the Law Council of
Australia, p. 10; the Law Society of NSW, p. 2; Mr Patrick George, including extract from
‘Defamation Law in Australia’, p. 575; and Associate Professor David Rolph, including ‘A critique
of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207 at 244-245.
21. Model Defamation Provisions, clause 14(1)(a).
22. Model Defamation Provisions, clause 14(1)(b).
1.
Discussion Paper Page 16 of 43 the offer was reasonable.
3.6 Clause 19 provides that evidence of any statement or admission made in
connection with making or accepting an offer is not admissible as evidence in any
civil or criminal proceedings, other than in connection with a provision of Division 1
of Part 3, or determining costs in defamation proceedings.
3.7 Most submissions to the NSW Review indicated general support for the offers of
amends provisions.23 These provisions were generally perceived as a useful tool for
early settlement and keeping disputes out of the courts, potentially reducing the
stress and expense of parties, and reducing stress on the justice system. Some
submissions observed that media organisations have availed themselves of these
provisions in a number of cases since their introduction, and have resolved a
majority of complaints by the offer of amends procedure. However, a small number
of submissions raised concerns with some aspects of the Division, which are
discussed below.
Timeframe for making offers to make amends
3.8 Some stakeholders raised concerns about the timeframe within which an offer of
amends must be made.
3.9 Clause 14(1) states that an offer of amends cannot be made if 28 days have
elapsed since receipt of a concerns notice or after the delivery of a defence. Clause
18(1)(a) and (b), however, provide that it is a defence if a publisher made an offer
‘as soon as practicable’ after becoming aware the matter was defamatory, and was
ready and willing at any time before trial to carry out the terms of the offer if
accepted.
3.10 The Law Council of Australia submitted that the clause 18(1) defence is too
restrictive, and suggested that a publisher should be able to rely as a defence on an
offer to make amends made at any time within the 28 days prescribed under clause
14. The Law Council of Australia submitted that publishers reasonably need time to
assess whether a matter is defamatory, as well as the strength of any potential
defences, before making an offer of amends; and that if up to 28 days are taken to
assess these issues, rather than making an offer at the earliest possible moment, a
publisher should not be disadvantaged.
3.11 The NSW Bar Association submitted that the wording of clause 18 has the effect
that a publisher is effectively required to make an offer as soon as it becomes aware
of a matter, potentially on the day of, or even before, receiving a concerns notice or
otherwise risk losing its capacity to rely on the defence. The NSW Bar Association
submitted that clause 18 should be reworded to state that the offer must have been
made within a reasonable time after the date the aggrieved person makes the
complaint, either through a complaints notice or statement of claim (whichever is
first).
3.12 The intersection of clauses 14 and 18 creates some potential for confusion. An offer
under this Division can be made where content is or may be defamatory, effectively
23. Submissions from Australia’s Right to Know, p. 6; Free TV Australia, p. 6; the Law Council of
Australia, p. 10, the Law Society of NSW, p. 2; and Mr Patrick George, including extract of
‘Defamation Law in Australia’, p. 575. On the question of how frequently the provision is likely to
be used, see submission from Associate Professor David Rolph, ‘A critique of the national,
uniform defamation laws’ (2008) 16 Torts Law Journal 207 at 244-245.
1.
Discussion Paper Page 17 of 43allowing offers in relation to content that is not proven to be defamatory. Clause 18
provides that a defence for failing to accept an offer can be relied on where the
defendant made a reasonable offer as soon as practicable after becoming aware
that a matter was or may be defamatory. Taken to its extreme, that may mean
publishers should make offers the day they publish material that they are aware
may be (but is not certainly) defamatory, whether or not the person subject to the
material would also take that view or complain. Alternatively, despite clause 14,
there is arguably potential for an offer made on the 28th day after issue of a
concerns notice to be viewed as having not been made ‘as soon as practicable’,
and thus precluding the defendant from relying on the clause 18 defence.
3.13 Australia’s Right To Know also submitted that clause 18(1)(b) could be read as
requiring a publisher to be ‘ready, willing and able’ to carry out the terms of the offer
at all times from the date of offer up to the date of a trial’s commencement. This is
not consistent with the view taken in Bushara v Nobananbas Pty Ltd, in which
Justice Nicholas rejected the argument that the words ‘at any time’ meant that the
offer must have been held open until the trial to be valid for the purposes of the
defence.24 Other courts have found that an offer to make amends may be able to be
relied upon even if it was only open for a fixed term of reasonable duration. 25
However, Basten JA in Nationwide News Pty Ltd v Vass [2018] NSWCA 259 stated
‘…there is, however, a real question as to whether the publisher could rely upon an
offer made for a limited period, ceasing well before the date of the trial, if it were
ready and willing to carry out the terms of the offer only during that period.’
3.14 This may leave some uncertainty about how clause 18(1)(b) is to be interpreted,
and the required duration for an offer.
3.15 Further, stakeholders have subsequently raised concerns about clause 16(1) of the
Model Defamation Provisions, which provides that an offer to make amends may be
withdrawn before it is accepted by notice in writing given to the aggrieved person.
Some stakeholders have suggested amendments to make it clear that withdrawing
an offer to make amends in writing is not the only way to terminate the offer, and
that it may also be terminated if the offer is expressly or impliedly rejected by a
plaintiff (e.g. by making a counter offer or commencing proceedings).
3.16 Nationwide News Pty Ltd v Vass26 involved notices of amends expressed to ‘remain
open to be accepted until commencement of the trial, unless withdrawn in writing’.
After receiving a concerns notice from the plaintiff (Mr Vass), the defendant
(Nationwide) sent an offer to make amends that did not include an offer to pay
damages. The plaintiff responded that this offer was not reasonable and then made
an offer of compromise pursuant to the Uniform Civil Procedures Rules (NSW).The
defendant withdrew their offer to make amends in writing, and made a second offer
of amends that included an offer to pay damages. The plaintiff then made another
offer of compromise. Six months after the offer had been made, the plaintiff sent
another offer of compromise pursuant to the Uniform Civil Procedure Rules (NSW).
Nine months after the second offer of amends had been made (five weeks prior to
trial) the plaintiff wrote to the defendant accepting the second offer of amends. The
defendant disputed that the offer remained open but the NSW Court of Appeal held
the offer had been validly accepted. This case was complicated by the statement in
the offer of amends that it remained open until the commencement of the trial
24. Bushara v Nobananbas Pty Ltd [2012] NSWSC 63 at [10]-[14].
25. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283; Pingel v Toowoomba Newspapers Pty
Ltd [2010] QCA 175.
26. [2018] NSWCA 259.
1.
Discussion Paper Page 18 of 43unless withdrawn in writing. McColl JA did, however, indicate that she found that the
legislature did not intend the amends provisions to be construed by reference to
ordinary contractual principles.
3.17 This case has led some stakeholders to suggest that the Model Defamation
Provisions should be amended to clarify that the withdrawal of an offer to make
amends is not the only way to terminate the offer, that it may also be terminated by
being rejected by the plaintiff, either expressly or impliedly (for example by making a
counter offer or commencing proceedings), and that this does not deny a defendant
a defence under clause 18.
Question 4
(a) Should the Model Defamation Provisions be amended to clarify how
clauses 14 (when offer to make amends may be made) and 18 (effect of
failure to accept reasonable offer to make amends) interact, and,
particularly, how the requirement that an offer be made ‘as soon as
practicable’ under clause 18 should be applied?
(b) Should the Model Defamation Provisions be amended to clarify clause
18(1)(b) and how long should an offer of amends remain open for in order
for it to be able to be relied upon as a defence, and if so, how?
(c) Should the Model Defamation Provisions be amended to clarify that the
withdrawal of an offer to make amends by the offeror is not the only way to
terminate an offer to make amends, that it may also be terminated by being
rejected by the plaintiff, either expressly or impliedly (for example, by
making a counter offer or commencing proceedings), and that this does not
deny a defendant a defence under clause 18?
Offers to amend and jury prejudice
3.18 The Law Council of Australia raised concerns during the NSW Review that clauses
15, 18 and 19 may create potential for jury prejudice. This is because clause 18
allows a reasonable, unaccepted offer to publish a correction under clause 15 to be
relied on in defence to an action for defamation. The Council argued that
defendants may be discouraged from relying on the offer of amends as a defence
for fear that it may affect the success of any other defences (for example that the
statement was not defamatory). Clause 19 attempts to remedy the situation by
providing that evidence of a statement of admission made in connection with an
offer is not admissible. However, the Law Council of Australia expressed concern
that this may create a difficult situation for a jury, which may be required to assess a
defence of an offer to make amends and then artificially exclude that information
from its deliberations when determining other defences raised by the defendant.
3.19 The Law Council of Australia suggested that this undermines the intent of the
provision to encourage offers, and suggested that a jury be required to return a
verdict on all other issues before the offer to make amends defence is put before
them. The defendant would need to put the plaintiff on notice of the defendant’s
intention to rely on this defence.
3.20 However, consideration should be given to the consequences of such a multi-stage
approach and whether it could protract court proceedings.
1.
Discussion Paper Page 19 of 43Question 5
Should a jury be required to return a verdict on all other matters before
determining whether an offer to make amends defence is established, having
regard to issues of fairness and trial efficiency?
Other issues relating to offers to make amends
3.21 Stakeholders have subsequently raised other concerns about the offers to make
amends provisions, including:
There is no requirement for an aggrieved person to list the URL of the alleged
defamatory material in a concerns notice (a concerns notice is a notice in writing
that informs the publisher of the imputations of concern – clause 14(2))
Although clause 15 does not require an offer to make amends to include an
apology, some stakeholders have submitted that plaintiff lawyers often assert
that a correction which does not include an apology is not a ‘reasonable’ offer
pursuant to clause 18(1). In the second reading speech for the Defamation Act
2005 (NSW), the then NSW Attorney General stated:
“… the publication of an apology will no longer be a mandatory component of an
offer of amends. This should encourage more publishers to use the ‘offer of
amends’ procedure, particularly where a publisher believes that the matter
published was both truthful and fair but wishes to settle the case without an
expensive hearing. While an apology will be an optional component of a valid
offer of amends, a published apology will still be relevant to a court's
determination as to whether an offer rejected by a complainant was
reasonable.”
Clause 14(1)(a) provides for 28 days for a defendant to assess a claim and
determine whether to make an offer of amends. However, some stakeholders
assert that plaintiff lawyers often commence proceedings before this time period
has elapsed.
Question 6
Should amendments be made to the offer to make amends provisions in the
Model Defamation Provisions to:
(a) require that a concerns notice specify where the matter in question was
published?
(b) clarify that clause 15(1)(d) (an offer to make amends must include an offer
to publish a reasonable correction) does not require an apology?
(c) provide for indemnity costs to be awarded in a defendant’s favour where
the plaintiff issues proceedings before the expiration of any period of time
in which an offer to make amends may be made, in the event the court
subsequently finds that an offer of amends made to the plaintiff after
proceedings were commenced was reasonable?
1.
Discussion Paper Page 20 of 434. The role of judicial officers and juries in defamation
proceedings
4.1 Division 1 of Part 4 of the Model Defamation Provisions deals with the roles of
judges and juries, which have always been significant issues in defamation law.
4.2 Prior to the National Uniform Defamation Law’s introduction, there was a lack of
uniformity in relation to the respective roles of juries and judges in defamation
proceedings. Having abolished juries in civil litigation, defamation cases in the ACT
and South Australia were heard by judge alone, and Northern Territory cases were
also heard by judge alone unless ordered otherwise. In Queensland, Victoria,
Tasmania and Western Australia, juries determined defences, damages and liability.
In NSW, juries considered whether matters carried pleaded imputations, were
defamatory and were published by the defendant, while judges determined
defences and damages.
4.3 The National Uniform Defamation Law has reduced, but not fully overcome, these
inconsistencies across Australian jurisdictions. Juries continue to have no role in
any ACT, South Australian or Northern Territory defamation cases.
4.4 In the remaining jurisdictions, defamation proceedings may be tried by jury on
election by either party, unless the court orders otherwise.27
4.5 In jurisdictions with jury trials, a court may make an order under clause 21(3) that a
trial not be by jury, despite an election for trial by jury by one of the parties, where
the trial requires a prolonged examination or records, or the trial involves technical,
scientific or other issues that cannot be conveniently considered and resolved by a
jury.28 The NSW Court of Appeal has held that a clause 21(3) order should only be
made on the application of a party, not on the court’s own motion.29 Where a case is
tried by jury, the jury must decide issues of fact concerning whether the defendant
published defamatory matter and whether any defences are established (except for
some aspects of statutory qualified privilege),30 with the judge retaining
responsibility for issues of law.31
Concerns about the current situation
4.6 Several submissions to the NSW Review suggested that, notwithstanding increased
harmonisation, the remaining inconsistencies in the role of juries in different
National Uniform Defamation Law jurisdictions undermine the Model Defamation
Provision’s objective of promoting uniformity, and may not fully address issues of
forum shopping.32
27. Model Defamation Provisions, clause 21.
28. Model Defamation Provisions, clause 21(3). See also Mallick v McGeown [2008] NSWSC 129.
29. Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246.
30. Model Defamation Provisions, clause 22.
31. Model Defamation Provisions, clause 22(5)(b).
32. Submissions from the Law Council of Australia, p. 5; and Associate Professor David Rolph,
including ‘A critique of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207 at
225-226.
1.
Discussion Paper Page 21 of 434.7 The Law Council of Australia observed that actions that arguably should have been
brought in NSW were being brought in the ACT, presumably on the basis that
plaintiffs perceive their prospects of success as being greater before a judge sitting
alone, and to avoid a defendant electing trial by jury.33
4.8 The question of whether defamation matters should be heard by judges, juries or
both was a contentious issue in the development of the Model Defamation
Provisions, and strong views continue to be held. This reflects the differing positions
of jurisdictions.
4.9 This may remain an area where jurisdictions differ. However, the former Chief
Judge of the NSW District Court, the Hon Justice Blanch AM, has proposed that
clause 21(3) (which is provided for jurisdictions that wish to have jury trials) be
amended to allow courts to reject applications for jury trials of its own motion where
they are satisfied that to do so would be in the interests of justice in all the
circumstances.34 This would restrict the number of jury trials, but may have some
advantages in terms of case management and efficient operation of the court.
However, it would represent a significant departure from the general law of civil
procedure. It is important to note, however, that use of juries in civil trials other than
for defamation is now extremely rare.
Question 7
Should clause 21 (election for defamation proceedings to be tried by jury) be
amended to clarify that the court may dispense with a jury on application by the
opposing party, or on its own motion, where the court considers that to do so
would be in the interests of justice (which may include case management
considerations)?
Constitutional inconsistency
4.10 In Wing v Fairfax Media Publications Media Pty Limited [2017] FCAFC 191 the
Federal Court found that sections 21 and 22 of the Defamation Act 2005 (NSW) are
inconsistent with sections 39 and 40 of the Federal Court of Australia Act 1976. In
accordance with section 109 of the Australian Constitution, this has the effect that,
to the extent that the State law alters, impairs or detracts from the operation of the
Federal Court of Australia Act 1976,the State Act is inconsistent and inoperative.
4.11 Clauses 21 and 22 of the Model Defamation Provisions have been provided for, and
adopted by, those jurisdictions that have opted to allow jury trials for defamation
proceedings. Clause 21 provides that a plaintiff or defendant in a defamation
proceeding may elect for the proceedings to be tried by jury. Clause 22 outlines the
division of functions between a jury and a judge, and establishes that the jury is to
determine whether the defendant has published defamatory material, and whether
any defences are established, but that damages are to be determined by the judge.
33. Submission from the Law Council of Australia, p. 5.
34. Submission from the Hon Justice Blanch, pp. 1-2. For other submissions concerning a reduced
role for juries, or greater judicial discretion regarding their use, see submissions from the Hon.
Justice McClellan; and Mr Patrick George, including ‘Defamation Law in Australia’ extract, pp.
574-5.
1.
Discussion Paper Page 22 of 434.12 Under section 39 of the Federal Court of Australia Act 1976, civil trials are
conducted by a judge alone, unless the court orders otherwise, while section 40
provides that the Court may direct the jury to consider any issue, including
damages.
4.13 In Wing v Fairfax Media Publications Media Pty Limited [2017] FCAFC 191 the
Federal Court found that there is direct inconsistency between sections 39 and 40 of
the Federal Court of Australia Act 1976 and sections 21 and 22 of the NSW Act. As
a result, sections 21 and 22 are not binding on the Federal Court.
4.14 It is important to note that if a case involving clauses 21 and 22 of the Model
Defamation Provisions were heard before a state court, the Federal Court of
Australia Act 1976 would not apply, and there would therefore be no operative
inconsistency.
Question 8
Should the Federal Court of Australia Act 1976 (Cth) be amended to provide for
jury trials in the Federal Court in defamation actions unless that court dispenses
with a jury for the reasons set out in clause 21(3) of the Model Defamation
Provisions or – depending on the answer to question 7 – on an application by
the opposing party or on its own motion?
1.
Discussion Paper Page 23 of 435. Defences
5.1 Division 2 of Part 4 of the Model Defamation Provisions deals with defences to
defamation claims. This is one of the more significant parts of the Model Defamation
Provisions and a number of defences are considered below.
Defence of contextual truth
5.2 A publication might include several distinct allegations. Under the common law of
defamation, a plaintiff can select which allegations to raise in a defamation action.
They are not required to complain about all of the allegations in the publication. This
means that a plaintiff can complain about minor (but false) allegations in the
publication and not put the major (but true) allegations before the court. Previously,
under the common law, a defendant was not permitted to argue that the publication
was substantially true, or that the minor, false claims were justified by the major,
true claims.
5.3 Clause 26 of the Model Defamation Provisions addressed this issue by providing
the defence of ‘contextual truth’. The contextual truth defence is designed to prevent
plaintiffs from taking out of context relatively minor defamatory imputations within a
publication that otherwise contains content that is substantially true.
5.4 Clause 26 was designed to be modelled on section 16 of the Defamation Act 1974
(NSW), however, the defence as articulated under clause 26 has a much more
limited application.
5.5 Section 16 of the Defamation Act 1974 (NSW) provided that it was a defence to a
claim that a publication was defamatory if the contextual imputations (that is, the
content that contextualises the defamatory imputations) are substantially true, and
the plaintiff’s reputation is not further damaged by the defamatory imputation.
Section 16 allowed the defendant to raise an imputation that the plaintiff had not
pleaded, as well as to argue that an imputation pleaded by the plaintiff was true (a
practice known as ‘pleading back’). This allowed the judge or jury to balance the
effect of true and false imputations in a publication.
5.6 Although intended to mirror former section 16, clause 26 as drafted provides that a
defendant can only plead the substantial truth of an imputation that is ‘in addition to’
the defamatory imputations that are specifically complained of by a plaintiff. This
has the effect that, if a plaintiff claims that all imputations in a given context are
defamatory (even if some are substantially true), there will be no substantially true
imputations left for a defendant to rely on in their defence. More critically, if a
defendant seeks to rely on substantially true imputations that have not been
pleaded by a plaintiff, a plaintiff can amend their statement of claim to also adopt
those imputations, thus depriving the defendant of the full effect of the defence.
5.7 All of the submissions received in the NSW Review that discussed clause 26
suggested that the current drafting of the contextual truth defence is not achieving
its intended objectives and that it should be amended to better reflect the content of
the former section 16.35 The Law Council of Australia, for example, noted that the
35. Submissions from Australia’s Right To Know, pp. 14-18; Free TV Australia, pp. 1-2; Joint Media
Organisations, pp. 3-4; the Law Council of Australia, pp. 14-18; the NSW Bar Association, pp.
27-29.
1.
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