The NSW Attorney General has announced that NSW will "lead a push to modernise" Australia’s defamation law and improve the justice system’s engagement with digital media cases. The Attorney’s announcement follows the release of a new report by the NSW Department of Justice containing 16 recommendations. This report is the result of a statutory review, which first commenced in 2011, of the Defamation Act 2005 which implements the Model Defamation Provisions in New South Wales. The report includes a recommendation that the Council of Attorneys-General request a review of the Model Defamation Provisions to reconsider whether corporations should be given the right to sue for defamation.
Corporations have been prevented by legislation from suing for defamation, except in limited circumstances, since 2002. This is inconsistent with the position in other common law jurisdictions including the UK where a corporation may bring a claim for defamation if publication of a statement has “caused or is likely to cause serious harm” to its reputation. For bodies that trade for profit, reputational harm is not considered to be “‘serious harm’ unless it has caused or is likely to cause the body serious financial loss”.
The New South Wales Bar Association made submissions to the review in 2011 recommending that corporations’ rights to sue for defamation should be restored in Australia. The Association’s submissions are acknowledged in the report and have been reported in media today, including by the Guardian.
The report considered that current defamation law “continues to be appropriate”. However, in light of the position in other countries including the UK, the report recommends that National Uniform Defamation Law jurisdictions “reflect further on the question with a view to either reconfirming their position, or potentially amending” the Model Defamation Provisions.
The Association is committed to the administration of justice and promotion of the public good. As with any piece of legislation or policy reform, it is prudent and appropriate to continue to assess how well that law is performing and whether it continues to serve its intended purpose over time. This is particularly important for laws that seek to regulate and balance rights and freedoms in our rapidly changing global media and regulatory environment.
The Bar Association welcomes the opportunity to continue to engage with Government on this issue to ensure Australia’s defamation laws remain relevant and fit for purpose in today’s society.