• Hannah Ferguson

What the F is: the new 'public interest defence' in defamation law

On July 1st, amendments to defamation law were implemented in Queensland, New South Wales, South Australia and Victoria. Other state and territory jurisdictions will apply changes later this year. Multiple changes to the law have been made, including but not limited to: a single publication rule, updates to the contextual truth and qualified privilege defences and a new defence for peer reviewed publications in scientific or academic journals. However, the most notable amendment is the introduction of the 'public interest defence'.

A quick definition

Defamation is the publication of material which causes harm to a person’s reputation. 'Material' can mean written material, pictures, or spoken statements (a painting can be defamatory, so can a social media post, a theatre performance and even an online review). In every jurisdiction in Australia, the limitation period for legal action regarding defamatory content is one year following the publication of the material. Legal actions in defamation are civil, not criminal in nature.

A recent example of a high-profile defamation case is that of Christian Porter, who began a legal action against both the ABC and journalist Louise Milligan for their publication of an article that reported that a letter had been sent to Scott Morrison containing an allegation of rape against an unnamed cabinet minister. Porter has since discontinued the case.

What are the defences to defamation?

There are multiple defences to defamation, including:

1. Truth

Can the defendant prove that the claim is true or substantially true?

2. Absolute privilege

Has the material been published in proceedings of a parliamentary body or an Australian court?

3. Qualified privilege

Does it involve honest communications where a defendant has a duty (moral or legal or social) to communicate the information to a person who has an interest in the contents of that communication?

example: a police interview

4. Honest opinion

Can the defendant prove the material was an opinion, not fact? (note: it also needs to be established that the opinion relates to public interest and has a foundation of material that is (substantially) true)

5. Triviality

Can the defendant prove that the plaintiff's reputation was unlikely to sustain harm?

6. Innocent dissemination

This one is designed to protect those publishing someone else's material.

example: booksellers!

What is the new defence?

There are multiple significant amendments to the legislation, however, the one we will be focussing on is the extension of the current qualified privilege defence, the creation of a new 'public interest' defence.

The new defence applies if the defendant can show: (1) that the matter involves a subject of public interest and (2) the defendant reasonably believed the publication of the matter was in the public interest.

All of the circumstances of the case must be considered under this defence.

Why does it matter?

Historically, the qualified privilege defence has been utilised as a tool for defendant's attempting to leverage public interest as justification for publication. However, courts have defined 'public interest' narrowly and this has presented challenges for journalists. The new defence presents an opportunity for broader interpretation.

The amendment is designed to provide additional protection for journalists who are publishing articles about corruption or allegations of wrongdoing specifically in the sphere of government, officials, ministers and the military. However, this does not allow free rein for publishers. Journalist will still be required to establish that their claims are not baseless or reckless, regardless of if they are eventually found to be untrue.

Previous defamation laws have been suffocating for public interest journalism and created excessive barriers to free speech. While we are still unsure how these changes will take effect in court, it is a green light for journalists.