In 2019, the Consumers Federation of Australia participated in initial consultations as part of the Review of Defamation Law. Part 1 of this Review has now been completed, and on 31 March 2021, Attorneys-General agreed that New South Wales, South Australia, Victoria and all other jurisdictions that are able to do so will commence the Model Defamation Amendment Provisions 2020 on 1 July 2021, and remaining jurisdictions will commence those provisions as soon as possible thereafter.
These changes are good from the point of view of consumer advocacy organisations, which have a role in speaking out about the conduct of businesses. Claims of defamation by businesses can have a chilling effect on the public advocacy of consumer organisations.
The new provisions make it less likely that a business may succeed in an argument that statements of a consumer advocacy organisation are defamatory. Changes include:
- The limitation to on the right to sue for defamation to corporations with fewer than 10 employees has been clarified so that independent contractors and other non-employees are included in the definition of employee. A business could no longer say it has, say, 9 employees and all the other staff are contractors such that they can still sue for defamation.
- There is a new element of a cause of action for defamation which requires ‘serious harm’. For corporations that can sue, serious harm will not be met unless the harm to reputation causes the corporation ‘serious financial loss’. This is undefined, but it may be a difficult for a consumer advocate organisation’s defamatory statement to inflict serious financial loss.
- There is a new ‘public interest’ defence to defamation which takes into account a number of factors, including:
- whether a statement distinguishes between suspicions, allegations and proven facts;
- the extent to which the matter published relates to the performance of the public functions or activities of the person (i.e. if the statement of a CFA member relates to its consumer protection function, it is more likely to qualify for the public interest defence);
- whether the matter published contains the substance of the defamed person’s side of the story (i.e. a consumer advocacy organisation’s media release may say “X CORP disputes the allegations”); and
- the steps taken to verify the information in the matter published (i.e. if we have a policy that has been followed that seeks to verify statements made, this will help).
On 31 March 2021, Attorneys General also agreed to release the discussion paper for the Stage 2 Review of the Model Defamation Provisions. The Stage 2 Discussion Paper, and some background on the review, is available at www.justice.nsw.gov.au/defamationreview.
The Stage 2 paper addresses question of internet intermediary liability in defamation for the publication of third-party content. It also considers whether defamation law impacts reports of alleged criminal conduct to police and statutory investigative bodies and reports of misconduct to employers and professional disciplinary bodies. It asks whether extending absolute privilege to such reports is appropriate.
The Consumers’ Federation of Australia will be preparing a submission to the Stage 2 Discussion Paper. If any members wish to contribute, please contact email@example.com.