A national working party, led by NSW and established by the Council of Attorneys General, is currently reviewing the results of the first round of submissions to identify areas of national reform for Australia’s defamation laws.

The terms of reference for the review require a consideration of whether existing defamation laws are meeting their policy objectives, such as ensuring that unreasonable limits are not placed on "the publication and discussion of matters of public interest". It is also tackling policy questions such as how defamation law applies to search engines and social media sites.

As the Law Society of NSW stated in its submission, while the “Model Defamation Provisions were introduced at a time when significant developments in digital communication were already understood or contemplated…what was not obvious at the time was the way digital media would revolutionise the way we communicate.”

Back in 2005 when all states and territories in Australia introduced uniform defamation laws, Facebook’s network had not extended beyond educational institutions and Instagram did not even exist. More than a decade later, Facebook has 2.3 billion active users and our courts are dealing with an explosion of litigation over social media posts. A 2018 Report by the Centre for Media Transition, University of Technology Sydney has found that NSW has been, for a very considerable period, the preferred forum for defamation actions in Australia, as evidenced by a number of recent high-profile defamation cases in our courts.

While responsibility for defamation law falls to individual states and territories, as NSW Attorney General, the Hon Mark Speakman SC MP, stated, “a national approach to reform is essential to keep pace with the digital age where online publications cross state boundaries”.

It’s anticipated that the Council of Attorneys-General will consider proposed new laws in September. A further round of public consultation is expected in December 2019, with responses due in January 2020. It’s hoped new laws will be introduced in June 2020.

Ultimately, as the Law Council of Australia (LCA) stated in its submission to the Review of Model Defamation Provisions Discussion Paper, “the aim of a law of defamation should be to provide a mechanism whereby the courts can determine the truth or falsity of information about persons in a quick, cheap and just manner, thus achieving the appropriate balance between the right of individuals to protect their reputations and freedom of speech.”

On another note, congratulations to the Hon Christian Porter on his re-appointment as the Attorney General in the Morrison Government’s new Cabinet over the weekend.  We look forward to continuing to work with him through the LCA to promote the rule of law and administration of justice.

Elizabeth Espinosa, Law Society President

< Go back