Defamation and unfair publication

ALRC Report 11 proposed far reaching changes in Australia’s defamation law. It dealt with two important but competing interests: the protection of individual honour, reputation and dignity against the protection of freedom of expression and access to public affairs.

The report pointed out that the laws governing these matters in Australia were complex and inconsistent from one part of the country to another. The existing law took little account of changed social conditions, technological advances and the growth of national identity and national communication in contemporary Australia.

The report highlighted three major defects of the existing law:

1. inefficiency in protecting reputation;
2. obstacles to the free flow of information on public affairs; and
3. inadequate protection of personal privacy

Key recommendations

• There should be a uniform defamation law throughout Australia.
• An action for unfair publication should be created to cover the publication of sensitive private facts.

Implementation

In July 1980 the Standing Committee of Attorneys-General began discussing a uniform national defamation law based on the ALRC’s report. Draft Bills were released for public comment in 1983 and 1984. Failure to reach agreement on key areas such as the defence of justification and the definition of defamatory matter meant that defamation was removed from SCAG’s agenda in May 1985.

In 1988, having observed the continued failure to achieve uniform defamation laws, the Constitutional Commission recommended that the Australian Constitution be amended to allow the federal Parliament to legislate with respect to defamation (other than in the course of the proceedings of the Parliament of a State or of a court of a State). There was no action on this recommendation.

In March 1990 SCAG considered whether to reinstate the issue of defamation law. Later that year the Attorneys-General of New South Wales, Victoria and Queensland decided to review the law in their respective jurisdictions. On 26 August 1990 they released a joint discussion paper on defamation law proposals, indicating that they desired to achieve uniform or near uniform legislation on key areas of defamation law.

Following this discussion paper Defamation Bills were introduced into the New South Wales, Queensland and Victorian parliaments. These were the Defamation Bill 1992 (NSW), introduced on 25 February 1992, the Defamation Bill 1992 (Qld), introduced on 10 March 1992, and the Defamation Bill 1991 (Vic), introduced 13 November 1991. A new draft based on those Bills was tabled for consideration in the Parliament of the Australian Capital Territory in 1994.

The substance of the four Bills represented a modified version of the existing New South Wales defamation legislation. The New South Wales Bill was referred out to a Legislation Committee of the Legislative Assembly, which recommended that it be referred to the New South Wales Law Reform Commission for a comprehensive review. The other Bills have all lapsed.

The NSW Law Reform Commission released Report 75 Defamation in September 1995. The report was completed with the understanding that other jurisdictions supported the principle of uniformity of defamation law, but were awaiting the outcome of the NSW report. However, the recommendations contained in the NSW report were formed as amendments to the existing Defamation Act 1974 (NSW), a result the NSW Law Reform Commission considered would best benefit the law of defamation in NSW.

In July 2002, the development of consistent defamation laws was reinstated on the SCAG agenda. Before the March 2004 SCAG meeting, the Australian Government released a discussion paper entitled Outline of Possible National Defamation Law. At the March 2004 SCAG meeting, the states and territories indicated they preferred a harmonised approach to defamation laws, not a national law. The Australian Government indicated it would consider the views of the state and territories but progress its own proposal for a national defamation law. The Australian Government issued its Revised Outline of Possible National Defamation Law in July 2004.

The states and territories released a Proposal for Uniform Defamation Laws in July 2004. This was followed in November 2004 with a bill containing model provisions.

In 2005 and 2006, each of the states and territories enacted defamation laws based on the model provisions put forward by the states and territories in 2004.

The passage of uniform defamation laws went some way to implementing the key thrust of the recommendations in ALRC Report 11. The provisions of the new laws differ, however, from the recommendations made in ALRC Report 11, and also from the Australian Government’s 2004 proposal, in a number of key respects. These include:

• the legislation is not a code, except to the extent to which it is inconsistent with the provisions (ALRC Report 11 recommended codification);
• prevention of all ‘for-profit’ corporations with 10 or more employees from suing for defamation (ALRC Report 11 had no limitation on a corporation suing for defamation);
• prevention of an action being brought on behalf of a deceased person (ALRC Report 11 recommended that a legal representative be able to bring an action within 3 years of the defamed deceased person’s death);
• truth alone is a complete defence (ALRC Report 11 recommended this approach, when combined with creation of an action for unfair publication of sensitive private facts, but the Australian Government’s 2004 proposal preferred the additional requirement of publication for public benefit to rely upon the truth defence); and
• the absence of court-ordered correction (ALRC Report 11 recommended correction be a remedy for defamation).

The recommendations in ALRC Report 11 relating to an action for unfair publication of sensitive private facts have not been implemented. The need for a cause of action for a serious breach of privacy was given further consideration in the ALRC’s 2008 inquiry on privacy laws.