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Defamation Amendment Bill 2021

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 2 September 2021

Tags: Legislation, Justice, Freedom of Speech

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, I am pleased to rise and speak to the bill and indicate the Greens do support the bill. It is a very important step and something that has been discussed across the country and I think we are the last or second last jurisdiction to bring these model rules into being. So, it is a good thing that we have got there.

I have a range of comments to make and some possible questions the Attorney-General might be able to answer about this. I go first to the comments by the Tasmanian Law Reform Institute. I note that Ms Haddad has read substantially from their report so I will not traverse the same ground but I will summarise my comments and particularly the issues they raise. They make the important point at the outset of their submission - it was the only submission made in Tasmania - that they strongly endorse uniform laws between Tasmania and other Australian jurisdictions in general terms and specifically in relation to defamation law.

They believe that, notwithstanding, and it was not their view that there was anything that we should actively seek to change, but they wanted to flag some possible unintended consequences or potential effects that could come about that, in their view, might lead to certain parties being less enfranchised or less able to take a case than they currently are able to.

They summarise the issue at the end of their report by saying:

The present reform agenda reflects the circumstances in specific jurisdictions without consideration of the impact on the procedural or legal rights of litigants in other jurisdictions.

What I understand them to mean is that New South Wales in particular have had specific circumstances that have given rise to the model laws that we have before us and that has heavily weighted the manner in which the laws have been drafted. The Institute raises the concern that the reform agenda has been dominated by the other jurisdictions' concerns about conventional media companies being defendants in actions involving the re-publication of material they have produced in digital or social media forums.

The institute flags that is an entirely legitimate concern but the response that is being prepared does not address the major inequity with defamation law that stands, which is that it favours well-resourced litigants substantially over poorly resourced ones. Their view is that the model laws that we have before us appear likely to broaden the gap between those parties who can access justice and those who cannot.

That is a global statement of concern and caution about the increasing difficulty for small parties, small businesses, people at the start of their careers, people involved in student politics, business start-ups, inventors and so on, who have not established themselves with the might and the legal power of some of the major media organisations and who do not necessarily have capacity to bring a case under the model laws we have before us.

I go to the two issues they particularly flagged that could unjustifiably raise this bar: that is, the sections relating to the introduction of a serious harm principle and single publication rules. The issues that the TLRI have with serious harm is the requirement to argue the serious harm that has occurred to the plaintiff. The serious harm threshold now flips, as I understand it, where the plaintiff will have to prove the elements of the complaint and how they have injured his or her reputation in the mind of a reasonable person. It is up to the plaintiff to articulate the harm that has occurred. The defence no longer is able to argue triviality, which has been the situation up to now.

The TLRI does have a number of concerns that have been expressed by the member of Clark, Ms Haddad, but I also want to note that various other bodies made similar concerns. The Law Council of Australia's submission was prepared for model law review and I think it was entirely prepared by the Legal Society of South Australia because other law societies were not able to find the time to contribute to that review. It is the Law Society of South Australia and the South Australian Bar Association that have prepared the submission for the model laws.

Under the submission in point 7 they make the point that they support the introduction of a serious harm threshold. However, they flag concerns about the lack of guidance in the legislation itself about how that threshold would be approached and understood. They said that there is a real risk that simple statutory interpretation may result in the courts taking a different view. Although there is some United Kingdom jurisprudence on the term 'serious harm', it will not necessarily be binding in our Australian courts. Further, given that serious harm could be interpreted quite subjectively, this could, in practice, lower the threshold and defeat the purpose of the amendments.

They note that the defence of contextual truth and the cap on damages in the law as it is prepared but they say the intention behind the provision is not sufficiently clear and subsequent statutory interpretation does not reflect the initial intention. They suggested that the inclusion within the legislation of some guiding commentary, capturing some of what appeared in the background paper for the review of the model defamation provisions would be important, or that a list of non exhaustive factors for the court be prepared so that the court could consider in relation to serious harm. That would be a similar approach that has been taken in relation to qualified privilege in section 33 and 3(a) of the draft amendments. That would be very beneficial to avoid confusion.

They also noted in relation to serious harm that the amendments fail to provide guidance as to what serious financial loss would mean for the purposes of an excluded corporation establishing a cause of action. They wondered whether this means serious loss is unobjective or a subjective sense. They present a case of a two person company earning $100 000 a year who suffers a $10 000 loss as a result of a defamatory publication. That would be a very significant loss in the context of that business, but it would not meet the minor civil jurisdictional limit in terms of an actual serious level of harm. Would that be the case? Would the Attorney-General like to make any comments on this?

These are hypothetical examples, and they would have to be determined by the court, but the point they are making is that, without the suitable guidance or any direction within these model laws, it leaves courts making their own interpretations, and there may be differing interpretations between jurisdictions, which would be a problem.

Conversely, Mr Speaker, other people who made submissions to the model law review were more enthusiastic about this serious harm threshold. Choice Australia made a submission. They are Australia's leading consumer advocacy organisation, and they aim to give consumers the best information possible on products and services through their reviews, advice and campaigns. As part of their work, they regularly publish the details of companies that have not acted in the best interests of consumers. The information that is published by them goes through a thorough internal organisational investigation and verification process prior to publication, but nonetheless, if companies could sue them for defamation, there is no doubt that they would like to silence them and continue to be able to undermine consumer rights.

For august bodies like Choice, it is obviously very important to continue to keep people informed of their rights and the risky operators who are out there. In relation to the serious harm threshold, Choice said they strongly support the continued exclusion of for profit organisations to be able to sue for defamation. The introduction of a serious harm threshold assists in narrowing the test for situations where corporations are able to sue for defamation, and from their point of view they see that as a benefit.

Arts Law Centre of Australia also made a submission to the review of model defamation provisions. They supported the serious harm threshold, saying it seeks to limit litigation where the plaintiff can demonstrate that the publication has caused serious harm to them, and they believe it will encourage freedom of expression and decrease the risk of litigation for artistic creators who are often publishing to a small audience, where serious harm to a plaintiff's reputation would be unlikely.

Mr Speaker, as we can see, as is the case with the law, it is rarely a simple matter. On reading the number of submissions that have been made, it has become very apparent to me that there are different parties with quite different levels of dominance and power in the marketplace in society who have differing levels of ability to take a defamation case if they feel they have been defamed.

These model laws seek to strike a balance. In this second reading speech, I am flagging some of the concerns of unintended consequences. We should always be mindful about who misses out in our justice system, and who is not able to make a case. Clearly, one of the intentions of these laws is to reduce frivolous or trivial cases being taken, and where they are genuinely so, that would be desirable.

I am also mindful, as a member of a party who regularly speaks truth to power, that one person's 'frivolous' is another person's incredibly important level of conviction and commitment. We have to be careful we do not stack the cards against the smaller voices in our community.

The Law Society also made some cautionary comments about the single publication rule. They believed that, in combination with the statutory time bar of one year in section 28, with the potential for three years when an exception is granted, the single publication law has the potential to disproportionately impact the rights of emergent rather than established individuals and businesses.

They offered some hypothetical scenarios, and I am sure the Attorney General has read the examples the TLRI have written. I wonder whether she could comment, because the TLRI submission was made to the exposure draft of the bill, is that correct? Yes, so their questions stand.

Could the Attorney General comment on whether the two hypothetical cases they provide would able to be taken, or not?

I will revise these examples, for people reading Hansard or watching.

One example is where one person - whom I will call Max - invents a new type of storage battery, and another person - whom I will call Ella - publishes an article in an online technology magazine implying Max misappropriated Ella's intellectual property to make the product. If Max is unaware of the publication at the time and does not do anything in response to Ella's article, three years later when the product has completed regulatory and safety testing and it comes onto the market, if Ella republishes the allegations in a near identical form after the three year period is finished, and that publication receives international attention online at that point and it damages the market release, would Max be barred from doing something about it?

I believe this example was discussed with the Attorney General's staff, and I believe the bill covers this example and a person would still be able to make a case, arguing that the circumstances are new, and it becomes a new publication because the circumstances are substantially different. If the Attorney General could clarify whether that is the case, I would appreciate it.

The second hypothetical they raised was when a person makes a defamatory comment about somebody that they do not choose to follow up on at the time, but the comment is republished again outside the statutory period, after more than three years, when that person is seeking employment. It was false the first time it was made, and remains false subsequently, but, because it had been stated previously, the plaintiff would not have the capacity to bring a case at that point. These are real-life examples they are presenting. I would appreciate the Attorney-General providing some clarity on those things, if that is possible.

To the other parties who have provided a submission to the model rules, Choice Australia strongly supported the single publication rule because they believe it gives it a concise and nationally consistent approach to interpreting the material that is published on digital platforms. That is important to think of it from their point of view; they are a national organisation. It is in their interest to have standardised rules around the country. If we are looking from the point of view of Tasmanian residents, it is not as important for that to be standardised. We make our own laws here. That is their view, that a nationally consistent approach is useful.

The Arts and Law Society also made the point that under the current legislation, publishers have been exposed to a high level of risk over publications that no longer have currency or relevance. Where legal action is commenced many years from the initial publication, at the moment there is the current multiple publication provisions, publishers may no longer have possession of materials or have contact with employees who are present at the time of the alleged defamation or be able to provide any supportive relevant defence. That is particularly applicable to independent publishers who have limited resources to officially archive their research, supporting publication of the material. Clearly, they are making a strong case for drawing a line in the time period that a case can be taken. I think that is widely agreed to be an important step forward. We support this single publication rule.

I want to speak to the public interest defence. It is an important part of this bill and something close to the Greens' heart. It recognises that the greater the seriousness of defamatory allegations and the potential harm that they cause, the greater the responsibility of a publisher, journalist or purveyor of the material to make sure that all reasonable and practical steps are taken to verify the allegations and provide the person in question with a reasonable opportunity before publication to make a response.

The Law Society of South Australia makes the point that in order for the defence to be upheld, they would expect the publisher must reasonably believe the truth of the defamatory allegations and have taken these reasonable and practical steps. Choice Australia is extremely strongly supportive of this particular public interest defence. It has the greatest significance for their work and they give an excellent example of their annual Shonky Awards. Most of us here would have heard of the Shonky Awards, or if you have not, you can google them. They are quite good fun. Their entire purpose is to name and shame shonky products and companies who are taking advantage of gullible consumers. When they started, the Shonky Awards were set out specifically and deliberately to injure the reputation of companies and to pressure them to do better by their customers in circumstances in circumstances where they have repeatedly failed to respond to individual consumer complaints. They do not do this lightly, they back it with extensive investigation and evidence. For 14 years Choice have called out safety risks and misleading advertising and poorly performing products. Thank goodness they continue to do that work on behalf of Australian consumers. They are very pleased that the public interest defence would capture the work that they do and their wider investigative work. They make a strong point about the importance of these sorts of investigations in the public interest and the public benefit in using the media to pressure companies to do the right thing.

The Arts and Law Society also strongly support the introduction of the public interest defence in order to strike a better balance between the ability to report on matters that are very relevant to the public and making sure that individual reputations are not unfairly damaged. It is not an unfettered right.

It commends the recommendation to consider the extent of compliance by publishers with industry codes and standards, such as journalists' codes of ethics. And industry bodies, such as the Australian Press Council and the Journalists Association, have the relevant expertise and are well placed to guide publishers in appropriate industry standards. I hope that that work is going on and that there are standards being developed for some of the smaller journalist organisations. I would have thought the Australian Press Council would be doing that, but it is very important for people to have good information about the rights and responsibilities of this public interest defence

I will end my comments today by asking a question about the damages for loss limited. I believe it sets the top bar for non economic losses at something around $430 000, which is indexation adjusted from the base rate of $250 000 at the time of the act. It sounds like that is extremely important to have a limit like that. I wondered whether the Attorney-General could speak to if there is any push to change that limit and to make a change. It has obviously all being agreed to. Is there any conversation about changing that limit? What would the process of doing that be if these are model laws? What would the process be of changing any of these model laws? Is it just up to us now at the state level or are they fixed in stone and only able to be changed if a national Attorneys-General meeting goes through a process of amending the act at some future time? With that I am happy to support this bill.