Along with bringing the wonderful potential for increased connection, in the wrong hands social media carries major risks.
Those of us who practice in the field of defamation see some absolutely appalling cases of character assassination online, with entirely unwarranted derogatory comments circulated to literally thousands of people within hours in some cases. The NSW Defamation Act was legislated in 2005, well before social media had morphed into the monster it has become today, and NSW courts have been struggling to deal with some of the complications that arise in the peculiar world of online misbehaviour!
Subject to receiving royal assent, defamation laws in NSW are set to change in a number of significant ways, some of which are intended to address these social media challenges.
One of the most significant changes relates to the complication of the repeating of online defamation through multiple downloads. Under the 2005 Act, if an online article is downloaded on a date later than the original publication, this constituted a fresh publication, having the effect of extending the one-year limitation period, and enabling a situation to exist where an article many years old might still be actionable because it continued to be downloaded from time to time. The new regime provides that the limitation period is calculated by reference to the original publication (the single publication rule) – republications do not have the effect of re-starting the clock anymore, except if the republication is materially different from the original one.
Disparaging online chat is leading to a rise in what might be considered low level claims, where hurt feelings might arise due to comments on a Facebook page, or on Twitter which may only be seen or shared amongst a very small group of people. In an effort to cut out the very small and questionable cases, a major change is that the defamatory publication needs to have caused serious harm, and in the case of an exempted company, serious financial harm. Because of this, the defence of triviality is no longer needed, and the practical effect is a shift in the onus from a defendant having to show triviality to a plaintiff having to show seriousness.
What constitutes serious harm is not defined, so the case law will no doubt need to develop to shed light on this. This issue of seriousness can now be raised as a threshold issue by way of interlocutory application, or held off to trial, and/or a judge can initiate such a preliminary hearing if they hold misgivings.
Other changes focus on encouraging early settlement through tighter procedures. For example, concerns notices are now mandatory, and the limitation period of 12 months has been extended up to 56 days to allow for the service of a concerns notice and time for response before commencing proceedings to allow time for the pre-litigation processes to have a chance to work their way through. The recipient of a Concerns Notice can seek particulars as part of that process.
There are numerous other amendments which go far beyond the bounds of this article, touching upon such issues as the rules around making offers to made amends, the defences available, the quantification of damages, and limitation periods.
The changes under the amending legislation will only impact on defamatory publications made after the amendments take effect, except in relation to the single publication rule (and only then in relation to re-publications that are made after the amendments come in). Accordingly, for the next year at least, lawyers will be advising on two separate regimes, with the old regime applying to pre-amendment cases, and a new regime applying to post-amendment cases.
Atkinson Vinden has become very active in the defamation law field, with dozens of current cases, and strong connections with some of the best defamation barristers in Australia. If you ever need help in this area, please give our managing partner Rod Berry a call. Our model focuses on early resolution wherever possible.