Page 1936 - Week 07 - Wednesday, 23 June 2021
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provisions. I also recognise the efforts of my colleagues across all jurisdictions working together to produce these harmonised laws.
The bill makes a number of substantive, technical, minor, and consequential amendments to chapter 9 of the Civil Law (Wrongs) Act to introduce the amended model provisions. Overall, there are four main areas of reform made by this bill. The first is early dispute resolution and discouraging trivial and vexatious matters. Clause 11 bill introduces a serious harm threshold, as has been noted earlier. It has been modelled on section 1 of the United Kingdom’s Defamation Act 2013. This threshold requires a plaintiff to show that the publication of defamatory matter has caused or is likely to cause serious harm to the reputation of the person as an element for a successful defamation action.
New sections 122A(4) to 122A(7) establish the procedures that the judicial officer may follow when determining whether the serious harm threshold has been established. The intent of these sections is to encourage parties to resolve the proceedings early by enabling the issue to be dealt with as a threshold issue. The introduction of the serious harm threshold places the onus on the plaintiff to prove the level of harm as an element of the cause of action. As a result, there is no longer a need for the defence of triviality, which requires a defendant to prove that the defamatory material was unlikely to have caused the plaintiff harm. The bill therefore removes this defence from the act by omitting section 139D.
The second area of reform made by this bill is to refine existing and introduce new defences to a defamation cause of action. The most notable of these defences relates to the reporting of matters in the public interest, which is also modelled off laws in the United Kingdom. The purpose of the defence of contextual truth is to deal with circumstances where a publication contains a number of defamatory imputations and the plaintiff has chosen to impugn one or more but not all of them. In this circumstance, a defendant may argue that the substantial truth of the contextual imputations means that the defamatory imputations to which the plaintiff is disputing do not further harm the plaintiff’s reputation.
The current drafting of the defence of contextual truth impedes the defendant from pleading back any imputation that the plaintiff had pleaded as a contextual imputation to establish the defence. This is clearly contrary to the purpose of the defence and was one of the longstanding issues affecting the model defamation provisions that was widely acknowledged as requiring resolution. Clause 23 of the bill amends the defence of contextual truth to make clear that a defendant may plead back the imputations relied on by the plaintiff to establish whether they are substantially true.
The bill also clarifies the material that may be relied upon for the defence of honest opinion. Clause 27 allows for the publication of material that may damage a person’s reputation where the publication contains an opinion that is based on proper material. This clause clarifies that proper material is material that either sets out in specific or general terms in the published matter, is notorious, is accessible from a reference, link or other access point included in the matter or is otherwise apparent from the context in which the matter is published and the material is substantially true or was published
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