Page 1934 - Week 07 - Wednesday, 23 June 2021
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The bill supports the improvement of defamation laws in the territory by ensuring that the law represents prevailing community expectations around questions of reputation, public interest and freedom of speech and expression. The reforms include ensuring better safeguards and defences for the right to freedom of expression, particularly where matters of public interest are concerned, and promotes the early resolution of disputes by clarifying the procedures around offers to make amends and discouraging vexatious and trivial matters.
These reforms will be of benefit to the territory, as they ensure that matters in the public interest can be discussed freely, and provide a clear framework that promotes the use of alternative dispute resolution for defamation actions and, as a result, preserving valuable and limited court resources in the process.
The bill supports the right to freedom of expression by clarifying several defences to defamation claims. Most significant of these is the introduction of the public interest defence, which allows for the publication of material where it raises an issue of public interest and the defendant reasonably believes that the publication of that matter was in the public interest. The introduction of this defence responds to submissions received by the defamation working party during the consultation process that suggested current defences to be inadequate in protecting media publication in their fair reporting on matters of public interest.
This is important reform that encourages freedom of expression in circumstances where the publication is considered to be beneficial to the welfare of the general public, even where it may result in the publication of material that may damage an individual’s reputation. The introduction of this defence is significant in that it will support ongoing and open discourse on matters of public interest.
The bill also introduces a defence for peer-reviewed publications in scientific and academic journals and clarifies the defences of qualified privilege and honest opinion. Together, these amendments further encourage and protect the expressions necessary for academic and scientific advancement and the general promotion of public discourse without fear of repercussion.
A key concern around the application of defamation law prior to these reforms was a perceived increase in what was seen to be trivial or vexatious defamation proceedings coming before the courts. To address this, the amendment provisions introduce a serious harm threshold that a plaintiff must prove as an element of a successful defamation claim. Under the present framework, the burden of proof is on the defendant to establish that the relevant defamatory material is unlikely to cause harm to the plaintiff’s reputation. The introduction of a serious harm threshold is significant in that it places the onus on the plaintiff to prove that the publication has cause or is likely to cause serious harm to their reputation.
A requirement that the serious harm threshold be met will encourage early resolution of the matter without the parties resorting to time consuming and costly litigation and depleting finite court resources in the process. The intention is that only those matters which reach this threshold will proceed to trial, thereby discouraging the commencement of trivial or vexatious matters.
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