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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Defamation (Miscellaneous) Amendment
Bill 2020
A BILL FOR
An Act to amend the
Defamation
Act 2005
.
Contents
Part 2—Amendment of Defamation
Act 2005
4Amendment of section
4—Interpretation
5Amendment of section 9—Certain
corporations do not have cause of action for defamation
6Amendment of section 10—No cause of action
for defamation of, or against, deceased persons
10ASerious harm
element of cause of action for defamation
8Amendment of heading to Part 3 Division
1
9Insertion of sections 12A and 12B
12BDefamation proceedings cannot be
commenced without concerns notice
10Amendment of section 14—When offer to
make amends may be made
11Amendment of section 15—Content of offer
to make amends
12Amendment of section 18—Effect of
failure to accept reasonable offer to make amends
21Permission
required for multiple proceedings in relation to publication of same defamatory
matter
27ADefence of
publication of matter concerning issue of public interest
16Amendment of section 28—Defence of
qualified privilege for provision of certain information
28ADefence of
scientific or academic peer review
18Amendment of section 29—Defences of
honest opinion
20Amendment of section 33—Damages for
non-economic loss limited
21Amendment of section 41—Giving of
notices and other documents
Schedule 1—Related amendments and
transitional provisions
Part 2—Amendment of Limitation of
Actions Act 1936
2Amendment of section 37—Defamation
proceedings generally to be commenced within 1 year
3Insertion of sections 37A, 37B and
37C
37ADefamation
proceedings—single publication rule
37BDefamation
proceedings—extension of limitation period
37CDefamation
proceedings—effect of limitation law concerning electronic publications on
other laws
Part 3—Transitional
provisions
4Transitional provisions—Defamation
Act 2005
5Transitional provisions—Limitation of
Actions Act 1936
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Defamation (Miscellaneous) Amendment
Act 2020.
This Act comes into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Defamation
Act 2005
4—Amendment
of section 4—Interpretation
(1) Section 4—before the definition of Australian
court insert:
applicable period, for an offer to make amends, is defined by
section 14;
associated entity has the same meaning as in section 50AAA of
the Corporations Act 2001 of the Commonwealth;
(2) Section 4—after the definition of Australian
Tribunal insert:
concerns notice is defined by section 12A;
(3) Section 4—after the definition of electronic
communication insert:
excluded corporation means an excluded corporation referred
to in section 9;
further particulars notice means a further particulars notice
referred to in section 12A(3);
5—Amendment
of section 9—Certain corporations do not have cause of action for
defamation
(1) Section 9(2)(b)—delete paragraph (b) and substitute:
(b) it has fewer than 10 employees and is not an associated entity of
another corporation,
(2) Section 9(4)—delete subsection (4)
(3) Section 9(6)—after the definition of corporation
insert:
employee, in relation to a corporation, includes any
individual (whether or not an independent contractor) who is—
(a) engaged in the day to day operations of the corporation other than as
a volunteer; and
(b) subject to the control and direction of the corporation;
6—Amendment
of section 10—No cause of action for defamation of, or against, deceased
persons
Section 10—after its present contents (now to be designated as
subsection (1)) insert:
(2) Subsection (1) does not prevent a court, if it considers it in the
interests of justice to do so, from determining the question of costs for
proceedings discontinued because of the subsection.
After section 10 insert:
10A—Serious harm element of cause of action for
defamation
(1) It is an element
(the serious harm element) of a cause of action for defamation
that the publication of defamatory matter about a person has caused, or is
likely to cause, serious harm to the reputation of the person.
(2) For the purposes of
subsection (1)
, harm to the reputation of an excluded corporation is not serious harm
unless it has caused, or is likely to cause, the corporation serious financial
loss.
(3) The judicial
officer in defamation proceedings is to determine whether the serious harm
element is established.
(4) Without limiting
subsection (3)
, the judicial officer may (whether on the application of a party or on the
judicial officer's own motion)—
(a) determine whether the serious harm element is established at any time
before the trial for the proceedings commences or during the trial;
and
(b) make any orders the judicial officer considers appropriate concerning
the determination of the issue (including dismissing the proceedings if
satisfied the element is not established).
(5) If a party applies
for the serious harm element to be determined before the trial for the
proceedings commences, the judicial officer is to determine the issue as soon as
practicable before the trial commences unless satisfied that there are special
circumstances justifying the postponement of the determination to a later stage
of the proceedings (including during the trial).
(6) The matters a judicial officer may take into account in deciding
whether there are special circumstances for the purposes of
subsection (5)
include (but are not limited to) the following:
(a) the cost implications for the parties;
(b) the resources available to the court at the time;
(c) the extent to which establishing the serious harm element is linked to
other issues for determination during the trial for the proceedings.
(7) Without limiting
subsection (5)
, the judicial officer may determine the serious harm element is not
established on the pleadings without the need for further evidence if satisfied
that the pleaded particulars are insufficient to establish the
element.
(8) Nothing in this section limits the powers that a judicial officer may
have apart from this section to dismiss defamation proceedings (whether before
or after the trial commences).
8—Amendment
of heading to Part 3 Division 1
Heading to Part 3 Division 1—delete "Offers" and
substitute:
"Concerns notices and offers"
9—Insertion
of sections 12A and 12B
After section 12 insert:
12A—Concerns notices
(1) For the purpose of
this Act, a notice is a concerns notice if—
(i) is in writing; and
(ii) specifies the
location where the matter in question can be accessed (for example, a webpage
address); and
(iii) informs the
publisher of the defamatory imputations that the aggrieved person considers are
or may be carried about the aggrieved person by the matter in question (the
imputations of concern); and
(iv) informs the
publisher of the harm that the person considers to be serious harm to the
person's reputation caused, or likely to be caused, by the publication of the
matter in question; and
(v) for an aggrieved
person that is an excluded corporation—also informs the publisher of the
financial loss that the corporation considers to be serious financial loss
caused, or likely to be caused, by the publication of the matter in question;
and
(b) a copy of the matter in question is, if practicable, provided to the
publisher together with the notice.
Note—
requires a concerns notice to be given before proceedings for defamation
can be commenced.
(2) For the avoidance of doubt, a document that is required to be filed or
lodged to commence defamation proceedings cannot be used as a concerns
notice.
(3) If a concerns notice fails to particularise adequately any of the
information required by
subsection (1)(a)(ii)
,
(iii)
,
(iv)
or
(v)
, the publisher may give the aggrieved person a written notice (a
further particulars notice) requesting that the aggrieved person
provide reasonable further particulars as specified in the further particulars
notice about the information concerned.
(4) An aggrieved person to whom a further particulars notice is given must
provide the reasonable further particulars specified in the notice within 14
days (or any further period agreed by the publisher and aggrieved person) after
being given the notice.
(5) An aggrieved person who fails to provide the reasonable further
particulars specified in a further particulars notice within the applicable
period is taken not to have given the publisher a concerns notice for the
purposes of this section.
12B—Defamation proceedings cannot be commenced
without concerns notice
(1) An aggrieved person
cannot commence defamation proceedings unless—
(a) the person has given the proposed defendant a concerns notice in
respect of the matter concerned; and
(b) the imputations to
be relied on by the person in the proposed proceedings were particularised in
the concerns notice; and
(c) the applicable
period for an offer to make amends has elapsed.
does not prevent reliance on—
(a) some, but not all, of the imputations particularised in a concerns
notice; or
(b) imputations that are substantially the same as those particularised in
a concerns notice.
(3) The court may grant
permission for proceedings to be commenced despite non-compliance with
subsection (1)(c)
, but only if the proposed plaintiff satisfies the court—
(a) the commencement of
proceedings after the end of the applicable period for an offer to make amends
contravenes the limitation law; or
(b) it is just and reasonable to grant permission.
(4) The commencement of proceedings contravenes the limitation law for the
purposes of
subsection (3)(a)
if the proceedings could not be commenced after the end of the applicable
period for an offer to make amends because the court will have ceased to have
power to extend the limitation period.
(5) In this section—
limitation law means
Limitation
of Actions Act 1936
.
10—Amendment
of section 14—When offer to make amends may be made
(1) Section 14(1)(a)—delete paragraph (a) and substitute:
(a) the applicable period for an offer to make amends has expired;
or
(2) Section 14(2) to (5)—delete subsections (2) to (5) and
substitute:
(2) For the purposes of
this Act, the applicable period for an offer to make amends
is—
(a) if the aggrieved
person has provided further particulars in response to a further particulars
notice about a concerns notice after 14 days have elapsed since the concerns
notice was given—14 days since the publisher was given the further
particulars; or
(b) in any other case—28 days since the publisher was given a
concerns notice by the aggrieved person.
(3) If a publisher gives more than 1 further particulars notice,
subsection (2)(a)
applies only in respect of the first notice.
11—Amendment
of section 15—Content of offer to make amends
(1) Section 15(1)—after paragraph (b) insert:
(ba) must provide for the offer to be open for acceptance for at least 28
days commencing on the day the offer is made; and
(2) Section 15(1)(d)—after "reasonable correction of"
insert:
, or a clarification of or additional information about,
(3) Section 15(1)(g)—delete paragraph (g)
(4) Section 15—after subsection (1) insert—
(1a) In addition to the matters referred to in subsection (1), an offer to
make amends may include any other kind of offer, or particulars of any other
action taken by the publisher, to redress the harm sustained by the aggrieved
person because of the matter in question, including (but not limited
to)—
(a) an offer to publish, or join in publishing, an apology in relation to
the matter in question or, if the offer is limited to any particular defamatory
imputations, the imputations to which the offer is limited; or
(b) if the matter has been published on a website or any other
electronically accessible location—an offer to remove the matter from the
website or location; or
(c) an offer to pay compensation for any economic or non-economic loss of
the aggrieved person; or
(d) the particulars of any correction or apology made, or action taken,
before the date of the offer.
(5) Section 15(2)—delete "subsection (1)(g)(ii)" and
substitute:
subsection (1a)(c)
12—Amendment
of section 18—Effect of failure to accept reasonable offer to make
amends
(1) Section 18(1)(a)—delete paragraph (a) and substitute:
(a) the publisher made the offer as soon as reasonably practicable after
the publisher was given a concerns notice in respect of the matter (and, in any
event, within the applicable period for an offer to make amends); and
(2) Section 18(1)(b)—delete "at any time before the trial"
Section 21—delete the section and substitute:
21—Permission required for multiple proceedings in
relation to publication of same defamatory matter
(1) This section applies to a person who has brought defamation
proceedings for damages, whether in this jurisdiction or elsewhere, against a
person (a previous defendant) in relation to the publication of a
matter.
(2) The person may not bring further defamation proceedings for damages
against a previous defendant or an associate of a previous defendant in relation
to the same or any other publication of the same or like matter, except with the
permission of the court in which the further proceedings are to be
brought.
(3) A person is an associate of a previous defendant if, at
the time of the publication to which the previous defamation proceedings
related, the person was—
(a) an employee of the defendant; or
(b) a person publishing matter as a contractor of the defendant;
or
(c) an associated entity of the defendant (or an employee or contractor of
the associated entity).
Section 24—delete the section and substitute:
24—Defence of contextual truth
(1) It is a defence to the publication of defamatory matter if the
defendant proves that—
(a) the matter carried 1 or more imputations that are substantially true
(contextual imputations); and
(b) any defamatory imputations of which the plaintiff complains that are
not contextual imputations and are also carried by the matter do not further
harm the reputation of the plaintiff because of the substantial truth of the
contextual imputations.
(2) The contextual imputations on which the defendant may rely to
establish the defence include imputations of which the plaintiff
complains.
After section 27 insert:
27A—Defence of publication of matter concerning
issue of public interest
(1) It is a defence to the publication of defamatory matter if the
defendant proves that:
(a) the matter concerns an issue of public interest; and
(b) the defendant reasonably believed that the publication of the matter
was in the public interest.
(2) In determining
whether the defence is established, a court must take into account all of the
circumstances of the case.
(3) Without limiting
subsection (2)
, the court may take into account the following factors to the extent the
court considers them applicable in the circumstances:
(a) the seriousness of any defamatory imputation carried by the matter
published;
(b) the extent to which the matter published distinguishes between
suspicions, allegations and proven facts;
(c) the extent to which the matter published relates to the performance of
the public functions or activities of the person;
(d) whether it was in the public interest in the circumstances for the
matter to be published expeditiously;
(e) the sources of the information in the matter published, including the
integrity of the sources;
(f) if a source of the information in the matter published is a person
whose identity is being kept confidential, whether there is good reason for the
person's identity to be kept confidential (including, for example, to comply
with an applicable professional code or standard);
(g) whether the matter published contained the substance of the person's
side of the story and, if not, whether a reasonable attempt was made by the
defendant to obtain and publish a response from the person;
(h) any other steps taken to verify the information in the matter
published;
(i) the importance of freedom of expression in the discussion of issues of
public interest.
(4)
Subsection (3)
does not—
(a) require each factor referred to in the subsection to be taken into
account; or
(b) limit the matters that the court may take into account.
16—Amendment
of section 28—Defence of qualified privilege for provision of certain
information
Section 28(3)—delete subsection (3) and substitute:
(3) In determining for
the purposes of subsection (1) whether the conduct of the defendant in
publishing matter about a person is reasonable in the circumstances, a court may
take into account the following factors to the extent the court considers them
applicable in the circumstances:
(a) the seriousness of any defamatory imputation carried by the matter
published;
(b) the extent to which the matter published distinguishes between
suspicions, allegations and proven facts;
(c) the nature of the business environment in which the defendant
operates;
(d) whether it was appropriate in the circumstances for the matter to be
published expeditiously;
(e) any other steps taken to verify the information in the matter
published.
(3a)
Subsection (3)
does not—
(a) require each factor referred to in the subsection to be taken into
account; or
(b) limit the matters that the court may take into account.
(3b) It is not necessary to prove that the matter published concerned an
issue of public interest to establish the defence of qualified privilege under
subsection (1).
After section 28 insert:
28A—Defence of scientific or academic peer
review
(1) It is a defence to
the publication of defamatory matter if the defendant proves
that—
(a) the matter was published in a scientific or academic journal (whether
published in electronic form or otherwise); and
(b) the matter relates to a scientific or academic issue; and
(c) an independent review of the matter's scientific or academic merit was
carried out before the matter was published in the journal by—
(i) the editor of the journal if the editor has expertise in the
scientific or academic issue concerned; or
(ii) 1 or more persons with expertise in the scientific or academic issue
concerned.
(2) If there is a
defence to the publication of defamatory matter in a scientific or academic
journal because of
subsection (1)
, there is also a defence to the publication of any assessment of the
matter in the same journal if the defendant proves that—
(a) the assessment was written by 1 or more of the persons who carried out
the independent review of the matter; and
(b) the assessment was written in the course of that review.
(3) It is a defence to the publication of defamatory matter if the
defendant proves that the matter was contained in a fair summary of, or fair
extract from, a matter or assessment for which there is a defence because of
subsection (1)
or
(2)
.
(4) If a journal has more than 1 editor, a reference in this section to
the editor of the journal is to be read as a reference to the editor or editors
who were responsible for deciding to publish the matter concerned.
(5) A defence established under this section is defeated if, and only if,
the plaintiff proves that the defamatory matter or assessment was not published
honestly for the information of the public or the advancement of
education.
18—Amendment
of section 29—Defences of honest opinion
Section 29(5)—delete subsection (5) and substitute:
(5) For the purposes of this section, an opinion is based on proper
material if—
(a) the material on which it is based is—
(i) set out in specific or general terms in the published matter;
or
(ii) notorious; or
(iii) accessible from a reference, link or other access point included in
the matter (for example, a hyperlink on a webpage); or
(iv) otherwise apparent from the context in which the matter is published;
and
(b) the material—
(i) is substantially true; or
(ii) was published on an occasion of absolute or qualified privilege
(whether under this Act or at general law); or
(iii) was published on an occasion that attracted the protection of a
defence under this section or section 26 or 27.
Section 31—delete the section
20—Amendment
of section 33—Damages for non-economic loss limited
(1) Section 33(1)—delete "Unless the court orders otherwise under
subsection (2), the" and substitute:
The
(2) Section 33(2)—delete subsection (2) and substitute:
(2) The maximum damages amount is to be awarded only in a most serious
case.
(2a) Subsection (1) does not limit the court's power to award aggravated
damages if an award of aggravated damages is warranted in the
circumstances.
(2b) An award of aggravated damages is to be made separately to any award
of damages for non-economic loss to which subsection (1) applies.
21—Amendment
of section 41—Giving of notices and other documents
(1) Section 41(1)(a)—after subparagraph (iii) insert:
(iv) sending it by email to an email address specified by the person for
the giving or service of documents; or
(2) Section 41(1)(b)—after subparagraph (ii) insert:
or
(iii) sending it by email to an email address specified by the body
corporate for the giving or service of documents.
Schedule 1—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Limitation of Actions
Act 1936
2—Amendment
of section 37—Defamation proceedings generally to be commenced within 1
year
Section 37(2)—delete subsection (2) and substitute:
(2) The 1 year limitation period referred to in subsection (1) is
taken to have been extended as provided by
subsection (3)
if a concerns notice is given to the proposed defendant on a day (the
notice day) within the period of 56 days before the limitation
period expires.
(3) The limitation
period is extended for an additional period of 56 days minus any days remaining
after the notice day until the 1 year limitation period expires.
Example—
Assume a concerns notice is given 7 days before the limitation period
expires. This means that there are 6 days left after the notice day before the
period expires. Consequently, this subsection would operate to extend the
limitation period by 56 minus 6 days, that is, 50 days.
(4) In this section—
concerns notice has the same meaning as in the
Defamation
Act 2005
;
date of publication, in relation to the publication of matter
in electronic form, means the day on which the matter was first uploaded for
access or sent electronically to a recipient.
3—Insertion
of sections 37A, 37B and 37C
After section 37 insert:
37A—Defamation proceedings—single publication
rule
(1) This section applies if—
(a) a person (the first publisher) publishes matter to the
public that is alleged to be defamatory (the first publication);
and
(b) the first publisher or an associate of the first publisher
subsequently publishes (whether or not to the public) matter that is
substantially the same.
(2) Any cause of action
for defamation against the first publisher or an associate of the first
publisher in respect of the subsequent publication is to be treated as having
accrued on the date of the first publication for the purposes of determining
when—
(a) the limitation period applicable under section 37 begins; or
(b) the 3-year period referred to in
section 37B(2)
begins.
(3)
Subsection (2)
does not apply in relation to the subsequent publication if the manner of
that publication is materially different from the manner of the first
publication.
(4) In determining whether the manner of a subsequent publication is
materially different from the manner of the first publication, the
considerations to which the court may have regard include (but are not limited
to)—
(a) the level of prominence that a matter is given; and
(b) the extent of the subsequent publication.
(5) This clause does not limit the power of a court under
section 37B
to extend the limitation period applicable under section 37.
(6) In this clause—
associate of a first publisher means—
(a) an employee of the publisher; or
(b) a person publishing matter as a contractor of the publisher;
or
(c) an associated entity (within the meaning of section 50AAA of the
Corporations Act 2001 of the Commonwealth) of the publisher (or an
employee or contractor of the associated entity);
date of first publication, in relation to the publication of
matter in electronic form, means the day on which the matter was first uploaded
for access or sent electronically to a recipient;
public includes a section of the public.
37B—Defamation proceedings—extension of
limitation period
(1) A person claiming to have a cause of action for defamation may apply
to the court for an order extending the limitation period applicable under
section 37 for the cause of action.
(2) The court may
extend the limitation period to a period of up to 3 years running from the
date of the alleged publication of the matter if the plaintiff satisfies the
court that it is just and reasonable to allow an action to proceed.
(3) In determining whether to extend the limitation period, the court is
to have regard to all of the circumstances of the case and in
particular—
(a) the length of, and the reasons for, the plaintiff's delay;
and
(b) if a reason for the delay was that some or all of the facts relevant
to the cause of action became known to the plaintiff after the limitation period
expired—
(i) the day on which the facts became known to the plaintiff;
and
(ii) the extent to which the plaintiff acted promptly and reasonably once
the plaintiff knew whether or not the facts might be capable of giving rise to
an action; and
(c) the extent, having regard to the delay, to which relevant evidence is
likely to be unavailable or less cogent than if the action had been brought
within the limitation period.
37C—Defamation proceedings—effect of
limitation law concerning electronic publications on other
laws
(1) This section applies in respect of any requirement under section 37 or
37A
for the date of publication of a matter in electronic form to be
determined by reference to the day on which the matter was first uploaded for
access or sent electronically to a recipient.
(2) A requirement to
which this clause applies is relevant only for the purpose of determining when a
limitation period begins and for no other purpose.
(3) Without limiting
subsection (2)
, a requirement to which this clause applies is not relevant
for—
(a) establishing whether there is a cause of action for defamation;
or
(b) the choice of law to be applied for a cause of action for
defamation.
Part 3—Transitional
provisions
4—Transitional
provisions—Defamation
Act 2005
An amendment made to the
Defamation
Act 2005
by this Act applies only in relation to the publication of defamatory
matter after the commencement of the amendment.
5—Transitional
provisions—Limitation of Actions
Act 1936
(1) The amendment made to section 37 of the
Limitation
of Actions Act 1936
by this Act applies in relation to the publication of defamatory matter
after the commencement of the amendment.
(2) Section 37A of the
Limitation
of Actions Act 1936
(as inserted by this Act) applies in relation to the publication of
defamatory matter after the commencement of the section, subject to
subsection (3)
.
(3) Section 37A of
the
Limitation
of Actions Act 1936
(as inserted by this Act) extends to a first publication before the
commencement of the section, but only in respect of subsequent publications
after the commencement.
(4) Section 37B of the
Limitation
of Actions Act 1936
(as inserted by this Act) applies in relation to the publication of
defamatory matter after the commencement of the section.