Page 1355 - Week 05 - Wednesday, 12 May 2021
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stakeholder roundtables were held. Five main themes emerged from stakeholder submissions: first, the urgent need for the model laws to be modernised to adapt to digital communications; second, the increasing use of defamation law for trivial and vexatious matters; third, parties not having sufficient incentives to resolve disputes without resorting to litigation; fourth, the need for a dedicated public interest defence to protect the ability of journalists and media organisations to report on matters of public concern; and fifth, there were several provisions requiring clarification and refinement to ensure they continue to operate as originally intended.
On 27 July 2020 the Council of Attorneys-General approved the final version of the Model Defamation Amendment Provisions 2020. This bill is the culmination of an intense reform process informed by peak legal bodies, academics, digital platforms, media companies, consumer groups, legal representatives for plaintiffs and defendants, and individuals with experience in bringing or defending defamation claims. I express thanks to those who have given their time to provide input to the development of these reforms. The model defamation amendment provisions agreed by the Council of Attorneys-General are far reaching.
The fundamental aim of this bill being presented to the Assembly today is to strike a balance between, on the one hand, providing fair remedies for a person whose reputation is harmed and, on the other, ensuring that unreasonable limits are not placed on a person’s right to freedom of expression. This balance is especially important to strike when it concerns matters of public interest. Any individual’s right to freedom of expression is important but when they bring new information to light that can contribute to public debate it is even more important to make sure that right is not overwhelmed.
With the rise of digital platforms and digital media over the past years we have seen a clear need for our laws to keep up with these revolutionary ways of communicating and disseminating information. These are challenges on a scale that the reforms in 2005 and 2006 were not designed to handle, and this bill helps realign our defamation laws with modern expectations.
Importantly, this does not mark the end of reforms to defamation laws. A second stage of national work focusing on the liabilities and responsibilities of digital platforms for defamatory content published online is already progressing. Stage 2 will consider, among other issues, takedown procedures for defamatory content published online and the extension of privilege to statements made to employers about allegations of unlawful conduct.
It is important to note this bill supports the right to freedom of expression through introducing and refining several defences to a defamation action. The most notable of these defences relates to the responsible communication on a matter of public interest.
One of the key messages conveyed in developing these amendments is that existing defences did not adequately protect media publication regarding matters of public interest. Submissions received by the Defamation Working Party noted that the existing defences relating to fair reporting and public concern have not been successfully argued by a mass media defendant since they were introduced. While this
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