Litigation: 07 October 2021
As of 1 July 2021, Stage 1 of the Model Defamation Amendment Provisions commenced in Victoria. So, what exactly has changed? Well, a fair bit actually.
These reforms are the result of extensive public consultation to strike a better balance between protecting plaintiffs and freedom of expression. These reforms include procedural changes to concerns notices and limitation periods, a new Serious Harm element for the cause of action, and changes to the available defences.
In addition to these statutory changes, the High Court has also confirmed in the case of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27 that public Facebook pages are liable for any defamatory comments posted by third-party users on their page. Click here to view our article Businesses Claim 'We Didn't Even Shoot The Sheriff': HCA Holds In Recent Defamation Decision That It Does Not Matter which deals with this topic.
While concerns notices have long been treated as mandatory, the reforms have enshrined that position in the legislation. Before you can issue proceedings, the plaintiff must first serve a concerns notice. Plaintiffs must also wait for 28 days to elapse after sending the notice before they can issue.
These reforms also provide for plaintiffs to only be able to use imputations particularised in their concerns notice. This means that when considering sending a Concerns Notice, greater care needs to be taken by practitioners to make sure they get this part right. Otherwise, you may need to serve a second Concerns Notice if the first one is found to be lacking.
There are of course cost implications for the client that flow from this reform. This is because Counsel may need to be involved in matters substantially earlier to assist in settling the notice upfront or in the event of a second notice being required.
The requirement to first send a concerns notice may also result in an automatic increase to the 12-month limitation period if the document is served within 56 days of its expiry.
When this occurs, a 56-day extension will begin from the date the concerns notice was served. It is important to note that this does not simply tack this amount of time on to the end of the 12-month limitation period.
An example provided by the Limitation of Actions Act 1958 states that, if a concerns notice is given 7 days before the limitation period expires, this means that there are 6 days left after the notice day before the period expires. This would then result in an extension of (56 minus 6 days) 50 days to the 12-month period.
Litigants should always seek advice about the relevant limitation periods.
One of the more substantial reforms is that damages for defamation are no longer presumed. The test, which originates from the UK statutory equivalent and clarified in Lachaux v Independent Print Ltd  3 WRL 18 adds a new Serious Harm element:
"has the material caused or is likely to cause serious harm to the reputation of the plaintiff?€
This raises two questions:
There is uncertainty surrounding these two questions as Australian Courts are yet to flesh either of these points out. The UK offers some guidance that this new element turns on facts about the impact the defamatory material has had, and not just the nature of the words.
This means that this reform will likely be prohibitive if the defamatory post is made on social media to a small audience, irrespective of the seriousness of the imputations. That is, unless that post managed to go viral or was picked up by a media outlet it would be hard to prove that "serious harmoccurred. Even without that occurring it seems an almost impossible task to determine the risk of a post "likely going viralto satisfy this new serious harm threshold.
This raises a strategic consideration for litigants of whether to litigate immediately or wait for the impact of the serious harm to manifest. Both have their merits, but what is clear is that each matter will need to be carefully considered on a case-by-case basis.
This reform may also mitigate the effect of the Voller decision, but again, that remains to be tested.
There are other significant amendments to how defamation actions work. These include changes to:
Firstly, these new laws appear to apply to material that was published after 1 July this year.
As such, any defamation issue that is related to publications made earlier than that will not have the benefit (or disadvantages) of these new reforms.
Litigants need to consider these reforms, and in particular the serious harm threshold carefully. To ensure that you have the opportunity to exercise your rights within time, speak to Paolo Tatti, Amanda Robinson, or Thomas Carroll of our offices today.