Defamation is commonly regarded as an imputation or assertion which would cause ordinary, reasonable members of society to think less of someone. It must be published and it must be untrue. Previously, to “publish” such an imputation or assertion required the physical printing and dissemination of a document but, with the wider reach and influence of online platforms, “publication” extends to media releases, writings, speeches, drawings, reports, advertisements and “any other thing by means of which something may be communicated to a person”.
Any cause of action for defamation, under Queensland jurisdiction, is governed by the Defamation Act 2005 (Qld). The purpose of this Act is to supplement pre-existing common law and to strike a balance between protecting the reputations of individuals and the implied freedom of expression of the general public. It also aims to facilitate dispute resolution between ‘publisher’ and ‘aggrieved’ parties. Introduced in the Queensland Parliament on 20 April 2021, the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld) proposes amendments to the Defamation Act which would further clarify and align these current objectives. Amendments, as they are proposed, most notably include:
- Amendments to limit the types of corporations that can sue for defamation;
- The introduction of the ‘serious harm element’ required as an element of the cause of action for defamation;
- Various amendments throughout the Act designed to ‘better facilitate’ defamation dispute resolution prior to litigation; and
- Changes to the roles of judicial officers and juries for various procedural matters. These proposed changes won’t be further discussed other than to say that certain defences would be determined by a jury (if there is one elected or required) and that judicial officers would be required, instead of juries, to determine whether the new ‘serious harm element’ is established.
Currently, section 9 of the Defamation Act excludes certain corporations from having a cause of action for defamation. These ‘excluded corporations’ include corporations which are ‘related’ to other corporations. The Bill proposes to further restrict the types of corporations that can sue for defamation to replace ‘related’ corporations with corporations that are ‘associated entities’ of other corporations. The term ‘associated entities’ is defined by section 50AAA of the Corporations Act 2001 (Cth). Briefly, an entity (the associate) is an associated entity of another entity (the principal) if:
- The associate controls the principal and the operations, resources or affairs of the principal are material to the associate; or
- The associate has a qualifying investment in the principal, the associate has significant influence over the principal and the interest is material to the associate – or vice versa for the principal; or
- A third entity controls both the associate and principal and the operations, resources or affairs of the principal and associate are material to the third entity.
Under section 50AAA, a ‘qualifying investment’ means an asset that is an investment or an asset that is the beneficial interest in an investment that is controlled by the entity which invests it in another entity.
It is important to note, however, that whilst excluded corporations cannot sue for defamation, they can, under similar but differing circumstances, sue for injurious falsehood which arises when corporations have suffered commercial loss. Injurious falsehood and defamation actions differ in that the former is intended to protect businesses from undue financial loss and the latter protects individuals from reputational harm.
The ‘serious harm element’ requires aggrieved parties to prove the publication of defamatory matter has caused, or is likely to cause, serious harm to the reputation of the aggrieved. For an excluded corporation, harm is not serious unless it involves serious financial loss. The current defence of triviality, should this Bill be enacted, would be omitted from the Act – the threshold of ‘serious harm’ nullifies any need to rely upon it.
New amendments introduce certain forms required to be exchanged between parties before the aggrieved may commence defamation proceedings. First, a concerns notice must be provided to publishers of defamatory matter (on behalf of the aggrieved) which outlines, most notably:
a. The location where the matter in question can be accessed;
b. The defamatory imputations of the aggrieved;
c. The harm that the aggrieved considers to be serious harm to the reputation of the aggrieved caused, or likely to be caused, by the publication; and
d. If the aggrieved is an excluded corporation, the serious financial harm the publication has caused or is likely to cause.
Further to the concerns notice, if the aggrieved fails to provide the required information needed for this notice, the publisher may request a further particulars notice from the aggrieved, required to be returned within 14 days. This notice requires the aggrieved to provide reasonable further particulars specified in the notice about the information concerned.
A publisher may make an offer to make amends within 28 days of receiving a concerns notice. Otherwise, if 14 days has passed following the provision of a concerns notice, the offer to make amends must be made within 14 days after the aggrieved provides to the publisher further particulars in response to a further particulars notice. If the relevant period to make an offer to make amends expires, the publisher may commence defamation proceedings.
Defamation proceedings may still commence without the provision of required concerns notice in limited circumstances, or where the court may consider it just and reasonable. Generally, defamation actions must commence within one (1) year from the date of publication of any defamatory matter.
Ultimately, the Bill proposed by the Queensland Parliament will have implications on both publishers and aggrieved parties should it be enacted, and will affect how defamation actions proceed.
Corney & Lind has extensive experience in the field of defamation. Should you require any advice on commencing or defending defamation action, feel free to contact our office.
This article was written by Law Clerk