BILL: Reforming SA's Defamation laws

Mark spoke in support of the Government's Bill to reform the defamation law in South Australia in response to the recommendations of the Council of Attorneys-General (CAG) earlier this year.

Defamation (Miscellaneous) Amendment Bill 2020

The Hon. M.C. PARNELL: The Defamation (Miscellaneous) Amendment Bill 2020, which amends the Defamation Act 2005 and the Limitation of Actions Act 1936, aims to reform the defamation law in South Australia in response to the recommendations of the Council of Attorneys-General (CAG) earlier this year.

CAG's defamation working party recommended changes to the model defamation provisions, which each state and territory government is now working towards adopting. This bill is South Australia's part in a nation-wide initiative. While these reforms only scratch the surface in addressing the issues with defamation law in Australia, many of the reforms in this bill represent sensible steps in the right direction, and I certainly support the goal of working towards a unified approach across all Australian jurisdictions.

So far South Australia and New South Wales are the first cabs off the rank in introducing the bill to their respective parliaments. I am very much indebted to my Greens' parliamentary colleague and fellow lawyer David Shoebridge MLC of the New South Wales parliament, who spoke to their version of this bill recently. David is a vigorous defender of human rights and the rule of law, and I acknowledge his leadership in our party on this issue.

One of the main concerns around current defamation law is that it can be used as a tool by rich and powerful people to silence their critics. The threat of litigation alone is a significant deterrent for many people, and may prevent them from publishing genuine criticisms of anyone with the resources to go down the defamation path in court.

On two occasions earlier in my time in this parliament I introduced 'protection of public participation' bills as a response to the despicable practice of some corporations and property developers of trying to silence their critics through SLAPP suits. SLAPP stands for 'strategic litigation against public participation', and it involves either threats or actual legal proceedings, which generally have little merit but which are designed to silence your critics into submission.

I used a number of examples in parliament when debating these bills, including the Hindmarsh Island marina developers and some polluting industries in the suburbs of Adelaide. Those bills still have merit, but the South Australian parliament has lacked courage, at least the courage of other jurisdictions, in relation to legislating to protect genuine public participation in public interest matters. Of course there should be a mechanism for people to defend their reputation against genuine defamatory comments and material. It has been clearer than ever in 2020 that baseless and untrue claims about public figures can represent a real threat to justice and democracy.

However, we must acknowledge that the world of defamation law has often been a battleground for the squabbles of the powerful and wealthy. For most of us, defamation is just a proxy for the threat of financial ruin from extended costly court battles, regardless of whether or not anything we said or wrote was actually defamatory. In this way, defamation law can act as a 'paywall' to criticising the rich and powerful, and this is a wall that must come down in the interests of justice and equality.

I am pleased that several of this bill's proposed changes do start to address this paywall to criticism while keeping intact the intent of defamation law which is to prevent and compensate for damage to reputation by false accusations. We still have a lot further to go but this is a sensible step in the right direction.

One of the key reforms of this bill is that it introduces a serious harm threshold so that a case will only go ahead if a preliminary hearing finds that the alleged defamation does cause risk of serious harm. The Greens believe this is a reasonable amendment. While the defence of triviality was a previous attempt at addressing cases where the alleged defamatory statement was unlikely to cause the plaintiff harm, this serious harm threshold goes further and mandates that serious harm must be established before a court case can proceed officially.

For cases where no serious harm can be established, non-litigious avenues will often be more constructive and certainly less expensive. I think it is important to flag that serious harm will have to be carefully defined. The Law Society, for example, expressed concerns about the lack of guidance in the legislation itself about how that threshold is to be approached and that serious harm could be interpreted quite subjectively. However, overall, the Greens think this reform is a sensible step towards preventing public resources being misspent on trivial claims and a step away from wealthy, powerful people using defamation law to shield themselves from valid criticism.

I think this serious harm threshold could also provide a much needed mechanism to scrutinise online cases of alleged defamation where published material can include a Facebook comment, perhaps only seen by four people, and deleted soon after posting. It may be defamatory but, depending on the identity of the four people who saw it, it may not reach the serious harm threshold. In fact, it is unlikely to. While social media has certainly muddied the waters around defamation, I hope that this reform will provide a new avenue for negotiation amid the rapidly changing publication landscape.

Consideration of social media and its role in modern communication is also central to another key reform in this bill, the single publication rule. The current defamation law requires that defamation action must occur within 12 months of publication of the alleged defamatory material. However, current laws also assume that each time online material is accessed or downloaded, it is 'published' afresh, meaning that this 12-month period is reset each time someone accesses the material and, hypothetically, can be 'published' perpetually forever. This amendment would specify that defamation cases based on online content must occur within 12 months of the original content being made public.

Another major aspect of the bill is that it mandates the issuing of a concerns notice before any proceedings occur and it outlines set forms, content and timing for these concerns notices, including offers to make amends. In other words, someone accused of defamation must be notified before any legal proceedings can occur, given the opportunity to withdraw potentially defamatory statements and the opportunity to say, 'Sorry, I didn't mean that.'

Under the current act, the plaintiff does have the opportunity of issuing a concerns notice but under this bill this will become mandatory. This is sensible, and I hope it will encourage non-litigious pathways and establish a few limitations on powerful players automatically retreating behind their paywalls to criticism. I think communication is always a good first step in addressing any dispute and it is a route to resolution that is much more accessible than marathon court battles.

Also included in this bill is a fresh public interest defence, intended to protect information that is otherwise defamatory but clearly in the public interest. For me, it is a no-brainer that we need a public interest test in defamation law. This is also consistent with the Greens earlier 'protection of public participation bills'.

I note that the new defence, which the bill aims to insert into the act, borrows partly from the public interest test in section 4 of the UK Defamation Act 2013 which is broader than South Australia's current 'Defences of fair report of proceedings of public concern' but has had its share of criticisms as being a hard test to meet. It is for this reason I am also pleased to note further additions inspired by New Zealand's defence of responsible communication on a matter of public interest.

It is vital that public interest is protected through a clear and consistent test and that free and robust public debate is not hindered by the threat of defamation proceedings and costly damages. While a clearer and simpler test may be required in future, the Greens are pleased to see this step in the right direction, and we support the reform.

I also want to briefly address the new defence for academic disputes published in peer-reviewed journals. In many ways it is astonishing that we even need to legislate this, but I am pleased that the bill will provide protection for academics who publish critiques of each other in peer-reviewed journals. This is a very reasonable reform. Academia relies on free discussion and the exchange of ideas, and it is vital that this process is not unnecessarily stifled by legal battles.

There are fiercely passionate academic debates in all fields of study, and I hope this new protection will ensure courts and public resources are focused on protecting people's public reputations, not on thrashing out academic disagreements over the excruciating details of the reliability of carbon dating for rice-based pottery glazes.

An honourable member interjecting:

The Hon. M.C. PARNELL: That's a big one. The bill will also clarify the way that the cap on monetary damages for non-economic losses would work. The original intent of the legislation was to provide a sliding scale, where damages are awarded values of between zero and an indexed maximum cap—currently $421,000—depending on the severity of the non-economic loss caused by the defamation.

However, this is not how it is currently used, and it is not how the law has been previously interpreted by the Victorian Court of Appeal. Accordingly, clause 20 of the bill aims to re-establish the original intent of the 2005 act. That is a sensible goal, and we will see if it works this time around.

Having spoken about what is in the bill, we also need to acknowledge what is not included. One particular concern of mine, which the CAG has decided to kick down the road a little further, is the vexed issue of social media and online reviews. When I raised this issue with the Attorney-General's staff, I was advised that:

Issues specific to liability for digital defamation are being progressed in a separate reform process, as per recommendation 15 in the background paper on the Model Defamation Amendment Provisions 2020.

I went to that paper and found recommendation 15, which reads:

The Defamation Working Party will undertake a separate review process to consider potential amendments to the Model Defamation Provisions to address the responsibilities and liability of digital platforms for defamatory content published online. This will include consideration of the issues raised by the Australian Competition and Consumer Commission in the Digital Platforms Inquiry Report published on 26 July 2019. Recommendations will be made to CAG following this process.

I also look forward to seeing what they come up with, because all of us who maintain social media sites, especially those who allow for third parties to write comments on our sites, need to be aware of what liability might be attached to that practice.

Clearly, in the modern world every one of us is a potential publisher, and our audience could be national or even global. That is why it is important that we commit to a national effort to update defamation laws around Australia. We need to make sure plaintiffs cannot shop around each state or territory jurisdiction looking for the defamation laws that suit them best.

I will finish by saying that while defamation law is still generally the realm of the powerful and wealthy to legitimise their squabbles or silence their critics, the proposed reforms in this bill are a step in the right direction. For these reasons, the Greens will be supporting the bill.