We are seeing a significant increase in the number of defamation enquiries, and we know from your comments that this is an area of law of great interest to our clients. The Council of Attorneys-General have just released a Discussion Paper on a review of defamation laws in Australia which contains some interesting reading.
The Discussion Paper highlights that NSW is by far the most litigious state in Australia when it comes to defamation, with just over half of all defamation cases in the 5 years up to 2017 being brought in NSW.
The impact of technology is of huge significance in defamation, with 51.3% cases over the same 5-year period arising from digital publications. In that respect, an interesting area of debate is the question of how the multiple publication nature of digital defamation (which technically occurs every time a person downloads an article online) is handled in the context of a 12 months limitation period to bring a claim. What if the article keeps being downloaded for many months (or even years) – does that have the effect of extending the limitation period?
It seems that defamation is a more difficult type of claim to win than many others – over the 5-year period only one-third of cases which were heard at trial were successful. That means a lot of unhappy claimants with two sets of legal fees to cover! So far as results are concerned, of the 87 awards of damage over the period only 38 were for more than $100,000, raising questions about whether the resources being expended on many cases are worth it.
One area of fertile debate relates to who should be covered by defamation laws? At present in NSW, only corporations employing fewer than 10 people may sue, along with individuals and not for profits. This limitation on larger companies is out of step with many other English-speaking jurisdictions, such as the US, Canada and New Zealand, where no such restriction applies.
The discussion paper covers many other areas of defamation practice, including the process of negotiation to make amends, the role of juries, and the sorts of defences that should be available.
The underlying thread to the debate around many of these potential changes is ensuring that a proper balance is maintained between protecting people and institutions from baseless reputational damage on the one hand, whilst honouring our long-held tradition of freedom of expression.
If you would like to learn more about defamation, we have video resources available – as we cover the rise of defamation in the digital age. Or contact Rod Berry on (02) 9411 4466 or firstname.lastname@example.org with your questions!