By David Helvadjian -
Snapshot
- Since 1 July 2021, NSW Defamation law has a dedicated defence for publications in the ‘public interest’.
- The defence has been part of English common law since 1999 and UK statute since 2013.
- Given the almost identical NSW provision, UK cases may be instructive as to how NSW courts will determine this test.
In 1 July 2021, the Defamation Amendment Act 2020 brought into force several changes to NSW’s Defamation Act 2005.
One noteworthy reform (see ‘Defamation law and the new serious harm test’, 81 Law Society of NSW Journal, September 2021, p80 for another one) is the new s 29A; s 29A(1) states it is a defence to the publication of defamatory matter if the defendant proves that:
- ‘the matter concerns an issue of public interest, and
- the defendant reasonably believed that the publication of the matter was in the public interest.’
Section 29A(2) states all the circumstances of the case must be taken into account, but s 29A(3) states a court may take into account one or more of the nine factors listed, if it considers any of them applicable. To ensure s 29A(3) is not used as a checklist, s 29A(4) stresses that s 29A(3) does not require each factor to be taken into account or limit the matters that may be taken into account. Finally, in trying to clear up the hitherto vexing question as to whether the jury or judge decides ‘reasonableness’ in qualified privilege (see e.g. Fairfax v Gayle [2019] NSWCA 172), s 29A(5) states this defence is to be determined by the jury, if there is one.
In the Second Reading Speech and the Explanatory Notes to the Amendment Act, the Government has said the object of this defence is ensuring defamation law does not ‘place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance’ (Notes, p 10) and also says, like serious harm, that this new defence is ‘comparable… to the defence in the UK Defamation Act’ (see Notes, p 9, and Speech).
