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The Defamation Amendment Bill 2020 recently discussed by the New South Wales Attorney General Mark Speakman (see Supporting Free Speech’, 69 Law Society of NSW Journal, August 2020, 22), has been passed by both Houses of Parliament and awaits assent at the time of writing. In a sense, criticism is now futile because the Bill will become law but there are a couple of things that should be pointed out about the legislation. The principal one is to correct the impression given by the Attorney and by some journalists that a new dawn of free speech and public interest journalism is about to arrive. In fact, the new Act has a good chance of creating more work for lawyers without any compensating increase in freedom of speech. This is sad when there are recognised methods of achieving that close at hand.

It also should be said that the premise of the changes is false – the failures in this area are failures of journalism, not law.

On the other hand, there are areas where the changes are welcome. An example is the amendments to section 26 of the Act, the contextual truth defence. The current act is poorly drafted – section 26 and section 35, that is, the section which enacts the cap on damages are among the worst examples. I might say that obvious flaws were pointed out to those responsible for the 2005 Act before its passage but were ignored. It is good to know they will be corrected.

There are other changes whose utility or at least intended utility is very dubious. The decision to have juries determine essentially everything in a defamation case except the amount of damages will not, in my opinion, have the effect of decreasing the success rate of plaintiffs. The reason is that juries, being made up of ordinary people, are more likely to identify with the plaintiff than with a media organisation or a journalist. Another example of this is the serious harm test which seems to me highly likely to achieve nothing except to increase the costs of defamation cases. How do you determine whether there is serious harm without carrying out some form of mini trial or leaving it to the trial itself? It does not appear to me to be something suitable to summary determination. Making concerns notices mandatory before suing is pointless.

Section 30 and public interest journalism!

The first point I wish to make is that the expressed reason for the proposed changes to section 30 (the defence of qualified privilege for reasonable publication of information) and of the introduction of a so-called public interest journalism defence in the new section 29A is incorrect in at least two respects. The first such respect is exemplified by the Attorney’s reference to the Law Council of Australia saying that ‘to date no mass media organisation has relied successfully on [the section 30 reasonableness defence] in a trial in Australia’. Unfortunately, in my opinion, that statement is wrong. In a media context, s 30 (or its predecessor, s 22 of the 1974 Act) has succeeded on at least the following occasions: Feldman v Polaris Media (No. 2) [2018] NSWSC 1035; Griffith v ABC [2008] NSWSC 764 (Kirby J) (s 22 upheld on appeal even though truth finding overturned [2010] NSWCA 257 – Hodgson, Basten & McClellan JJA); Field v Nationwide News [2009] NSWSC 1285 (Johnson J); Millane v Nationwide News Pty Limited [2004] NSWSC 853 (Hoeben J); Seary v Molomby [1999] NSWSC 981 (Sully J); Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 37 (Matthews J) (overturned on appeal and new trial ordered – but not on reasonableness issue); Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 (Hunt J).

It is a matter of concern where a significant reform is based on incorrect information. It is also based on an incorrect understanding of how section 30 operates in practice. That section requires a publisher to establish that it acted reasonably in publishing the defamatory material – a premise of the defence is the information in question is false. One might wonder why that is thought to inhibit discussion of matters of public interest.

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