Cyber-age reboot for Australia’s defamation laws


From The Journalist's Guide to Media Law

Lorraine Ochieng, Reporter

Is it okay to say or publish terrible lies about people? No. It’s called defamation and there are laws against it. But are our laws outdated and do they go too far or not far enough? Have they kept up with the internet? That’s what a group of Australia’s most senior lawyers are now looking into.

Australia’s National Defamation Laws are in the process of being reformed. The process kicked off in December 2018 when a council made up of the Attorneys General of all Australian States announced that a working party had been formed to get the reform underway. (The Attorney General of each state is an elected politician who is appointed to be chief legal advisor to the government).

The last time these laws were changed was in 2005-2006 when various states tweaked their laws so that all of the Australian states and territories had more consistent laws.

In launching the Defamation Working Party (DWP) New South Wales’ Attorney General, Mark Speakman, said: “NSW is delighted to be leading the process to review our national model defamation laws. A representative of the NSW Department of Justice will chair the DWP, which will also include the state’s Solicitor General Michael Sexton SC.

He added that Australian defamation laws needed updating to take into account online platforms that “were only beginning to emerge at the time” that the 2005 amendments were approved. He said the impact of technological change would be a significant focus of the DWP’s work and that to drive that process a discussion paper would be published in early 2019.
The discussion paper is now available and you can have your say on it up until 30 April 2019.
It provides a detailed framework that includes considerations of a fair balance regarding freedom of speech and protecting individuals when it comes to their reputation.
When the discussion paper was released the WA Attorney General John Quigley said: “Defamation law in Australia has not kept pace with rapid technological change and the rise of online publications. This is an important area of the law and it’s high time we closely examine our existing defamation laws and update them accordingly.

“This is a chance for the community and stakeholders to have a say about how defamation laws should operate in Australia and I encourage them to contribute to the review.”

According to the Law Council of Australia, the reform process will tackle questions such as: Is there overlap between defamation law reform and the regulation of hate speech? What about privacy rights? Are damages awards the answer when the defendant is anonymous and/or penniless? Can the traditional defences survive, and what changes to case management (including jury trials) should be considered? What reforms are being considered in other jurisdictions, and why?

At the end of the day it will be interesting to see whether they can limit trolling and bullying online.