Page 1937 - Week 07 - Wednesday, 23 June 2021
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on an occasion of absolute or qualified privilege, or attracted the protection of certain defences outlined in chapter 9 of the Civil Law (Wrongs) Act.
The bill also introduces a defence to the publication of defamatory matter if it was published in a scientific or academic journal, it relates to a scientific or academic issue and it was peer reviewed by someone with expertise in the scientific or academic issue concerned. The defence is modelled on section 6 of the UK Defamation Act and recognises that it is in the public interest for academics and scientists to be able to express a scientific or academic issue freely, particularly in circumstances where their statements have been subject to peer review. New section 139AB(5) provides that a defence under new section 139AB is defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or for the advancement of education.
Turning to one of the most significant reforms of this bill, one of the core objectives of the amendment provisions is to ensure that defamation laws do not place unreasonable limits on the right to freedom of expression, particularly in relation to the publication of matters of public interest and importance. The question of the public interest is what makes this reform one of the most significant.
Clause 24 of the bill introduces a new public interest defence to allow for the publication of material that may damage a person’s reputation where the matter concerns an issue of public interest and the defendant reasonably believed that the publication of the matter was in the public interest. This provision is modelled on section 4 of the United Kingdom’s Defamation Act.
While a definition of “public interest” is not provided for in the amendment provisions, the ordinary meaning of the words will apply to limit the scope of the defence. In determining whether the defence is established, new sections 139AA(3) and 139AA(4) provide that the court must consider all the circumstances of the case. These amendments also include a list of factors that the court may take into account in assessing the defence, such as the seriousness of the defamatory imputation and whether the published matter distinguishes between suspicions, allegations and proven facts. The purpose of identifying these factors is to provide some non-exhaustive guidance to the court rather than a mandatory checklist of factors.
Ensuring that the right to freedom of expression is reasonably protected in such circumstances is essential to the operation of a free and democratic society. The introduction of the new public interest defence will promote this objective by allowing the publication and discussion of matters of public importance without fear of defamatory action as a result.
The third area of reform is to modernise defamation laws in the context of digital communication by introducing a single publication rule. Currently, each publication of defamatory matter is a separate cause of action and publication is deemed to occur when it is received in a communicable form by at least one third party, that being a person other than the person said to be defamed.
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