The Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (‘the Queensland Bill’) has been introduced to Parliament and, if passed, the amendments to the Defamation Act 2005 (Qld) (‘the Act’) are proposed to commence on 1 July 2021.
The implementation of the proposed amendments set out within the Queensland Bill is hoped to achieve a more unified approach to defamation laws across other jurisdictions in Australia, which in turn will provide greater clarity to the State courts, the community and the media.
The proposed legislative amendments set out within the Queensland Bill will only apply to defamatory matters published after the commencement date of the amendments, meaning existing proceedings and any defamatory publications made prior to the amendments commencing will continue under the prior laws. The Queensland Bill contains similar amendments and additions that have been implemented in Victoria, New South Wales and South Australia.
The key reforms introduced by the Queensland Bill, include:-
- a single publication rule (for multiple publications of the same defamation matter) to provide simplicity around the one-year limitation period. The proposed amendments provide that the limitation period for defamation claims begins on the date of the first publication, unless a subsequent publication is materially different;
- a serious harm threshold, which must be established by plaintiff, confirming that a publication will not be considered defamatory unless it has caused, or is likely to cause, “serious harm” to the reputation of the plaintiff;
- a requirement to issue a Concerns Notice prior to filing court proceedings;
- a public interest defence (relating to publications where a defendant can prove the readers had a specific interest in receiving the information), and a defence applying to peer-reviewed statements/assessments in a scientific or academic journal;
- clarification in respect of the requirements of an offer to make amends, including the required content and timeframes for same; and
- greater clarification around the cap on damages for non-economic loss, setting the upper limit on a scale and applying regardless of whether aggravated damages apply.
Stage two of the review of the Model Defamation Provisions is currently underway and will specifically focus on the responsibilities and liability of digital platforms and internet intermediaries for defamatory conduct.
The Requirement to Issue a Concerns Notice
The Queensland Bill proposes to make it a requirement that the defamed party first issue the publisher with a Concerns Notice prior to filing court proceedings. The reforms proposed by what would be the new section 12A of the Act identify that a Concerns Notice must:
- be in writing;
- specify the location of the defamatory publication – i.e., where it can be accessed, such as a web page address;
- inform the publisher of :
- the defamatory imputations that are alleged to arise from the offending publication; and
- the serious harm or serious financial loss that the publication is alleged to have caused or is likely to cause;
- (if practicable) provide the publisher with a copy of the publication in question;
- provide the publisher with 28 days in which to provide an offer to make amends.
The abovementioned requirements expand upon the current section 14(2) of the Act which simply requires that a Concerns Notice is in writing and informs the publisher of the defamatory imputations that the aggrieved carried.
The implementation of the proposed amendments to the current defamation laws in Queensland will introduce significant change and modernisation to the law of defamation.
If you consider that you have been defamed, or if you receive a Concerns Notice alleging that you have published defamatory material about someone else, contact Rose Litigation Lawyers to speak with one of our specialist defamation lawyers today.