On 1 July 2021 Queensland introduced significant changes to the State’s defamation laws. The changes are described as the ‘model provisions’ and are similar with reforms being made in New South Wales, Victoria and South Australia.
Historically, for a defamation action to be successful, three elements must be satisfied:
- the information was communicated to a third person other than the claimant (publication);
- the material identifies the claimant (identification); and
- the information/material contains matter that is defamatory (defamatory matter).
The first addition to the model provisions is a fourth element:
- The publication of defamatory matter about a person has caused or is likely to cause, serious harm to the reputation of the person (serious harm).
It will be an evolving issue to determine what serious harm means in a defamation proceeding. The United Kingdom legislation has used the words serious harm since 2013. The Supreme Court in the UK had defined the words in Lachaux v Independent Print Ltd and another [2019] UKSC 27. The element is established if the statement complained of is inherently injurious (in other words, that the statement will cause not just some damage to reputation but serious harm to it).
The application of the new element of serious harm to reputation may be determined by reference to the actual facts about its impact, and not just the meaning of the words. Establishing whether there is a cause of action may depend on an assessment of the actual consequences resulting from the publication of the defamatory statement, which may include the size, and characteristics of the relevant audience, the quality of the publication, and whether the claimant had any reputation to begin with.
Serious harm to reputation cannot be established solely by reference to the inherent tendency of words to cause harm to reputation. As a consequence, if the UK findings are followed in Queensland, a person bringing a defamation claim may now be required to show through a combination of the inherent tendency of the words and their actual impact that serious harm has or is likely to be caused to their reputation.
The next raft of changes are in respect to the concerns notice. The previous iteration of the Act contained only mere reference to a concerns notice being provided before proceedings are commenced. A new section 12A sets out the specific requirements of a concerns notice.
Further, a person could previously bring a claim for defamation without first issuing a concerns notice. A new section 12B now makes it a requirement to serve a concerns notice before being able to commence a claim.
Other changes include amendment and addition of defences to defamation, as well as amendment to the cap of damages for non-economic loss.
The amendments have also affected the Limitation of Actions Act. Historically, a defamation claim could only be brought within 1 year of publication. This time can now be extended if a concerns notice is given within 56 days of the expiry date. That 1 year limitation is then extended by 56 days from the date the concerns notice is given.
If you have been defamed, or have been accused of defamation, contact one of our defamation lawyers for further advice on 07 3916 9555.
