What will defamation law look like in 2023 and 2024?

This article was originally published by Jess Feyder for Lawyers Weekly (10 March 2023).

A BigLaw partner and associate outline what has been seen in defamation law over the past year and discuss what is to be expected for the coming years.

Recently on The Lawyers Weekly Show, Bartier Perry partner Adam Cutri and associate David de Mestre discussed the outlook of defamation law in Australia for the coming year.

“We are in a great and interesting phase,” Mr Cutri said.

“When the Defamation Act first started back in 2005, it was really at the inception of social media. Social media was really at its infancy in and around then.

“We’re now in 2023, some almost 20 years later, and the model reforms are seeking to try and catch up the legislation with the transient nature of social media and where it’s gotten to.”

In July 2021, the first set of reforms came in, Mr Cutri outlined, “there were changes to the legislation, which brought an obligation of serious harm into the legislation”.

"What that was ultimately attempting to achieve was to weed out all of those claims which we call in the industry, the tyre kicker claims, and really have the court focus its attention on those serious matters where harm could be established", Mr Cutri outlined.

“One of the other big changes that we saw in 2021 was the implementation of the court limiting the amount of non-economic loss that you could otherwise achieve in defamation cases.

“Now, those two things together have really shifted the landscape, and we’ve seen a couple of high-profile cases over the last little while where you’ve got a huge amount of non-economic loss,” he explained.

“The stage-two reforms are coming in 2024, which will shift the focus a little bit more towards the Googles and the major publishers,” Mr Cutri outlined. “It will put some great obligations on them.”

Mr de Mestre outlined the trends expected for 2023.

“One trend we expect to see in 2023 is a lot more separate determinations of serious harm before final hearing, and also a lot of claims failing at that first hurdle,” he explained.

“Even though that new element was introduced in 2021, we only saw cases dealing with that element in the latter part of 2022,” Mr de Mestre continued. “So now we have a bit of a better understanding about what evidence is required to establish the serious harm threshold and also what some of the procedural mechanisms are.”

“It’s a very high threshold, and the evidence required to meet it is effectively that there is actual serious harm to reputation.

“The courts have said that hurt feelings and embarrassment aren’t enough to establish serious harm no matter how grave,’ he said.

Mr Cutri continued: “We are in the midst of the stage two, part A provisions coming into effect.”

“The changes follow some pretty major case law developments from the high court in defamation.”

“What the new legislative reforms seem to do is effectively modernise Australia’s defamation regime and provide some protection for those big media companies as internet intermediaries.

“There are some defences being introduced,” Mr Cutri said, “which effectively will allow the big media companies to protect themselves from liability in defamation where they didn’t author the content, and it’s not very easy for them to remove the content”.

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