DEFAMATION BILL 2005

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Objects of Act

4 Interpretation

5 Act binds Crown

Part 2—General principles

Division 1—Defamation and the general law

6 Tort of defamation

7 Distinction between slander and libel abolished

Division 2—Causes of action for defamation

8 Single cause of action for multiple defamatory imputations in same matter

9 Certain corporations do not have cause of action for defamation

10 No cause of action for defamation of, or against, deceased persons

Division 3—Choice of law

11 Choice of law for defamation proceedings

Part 3—Resolution of civil disputes without litigation

Division 1—Offers to make amends

12 Application of Division

13 Publisher may make offer to make amends

14 When offer to make amends may be made

15 Content of offer to make amends

16 Withdrawal of offer to make amends

17 Effect of acceptance of offer to make amends

18 Effect of failure to accept reasonable offer to make amends

19 Inadmissibility of evidence of certain statements and admissions

Division 2—Apologies

20 Effect of apology on liability for defamation

Part 4—Litigation of civil disputes

Division 1—General

21 Permission required for further proceedings in relation to publication of same defamatory matter

Division 2—Defences

22 Scope of defences under general law and other law not limited

23 Defence of justification

24 Defence of contextual truth

25 Defence of absolute privilege

26 Defence for publication of public documents

27 Defences of fair report of proceedings of public concern

28 Defence of qualified privilege for provision of certain information

29 Defences of honest opinion

30 Defence of innocent dissemination

31 Defence of triviality

Division 3—Remedies

32 Damages to bear rational relationship to harm

33 Damages for non-economic loss limited

34 State of mind of defendant generally not relevant to awarding damages

35 Exemplary or punitive damages cannot be awarded

36 Factors in mitigation of damages

37 Damages for multiple causes of action may be assessed as single sum

Division 4—Costs

38 Costs in defamation proceedings

Part 5—Miscellaneous

39 Proceedings for an offence do not bar civil proceedings

40 Proof of publication

41 Giving of notices and other documents

42 Regulations

Schedule 1—Related amendments and transitional provisions

Part 1—Preliminary

1 Amendment provisions

Part 2—Amendment of Civil Liability Act 1936

2 Amendment of section 3—Interpretation

3 Repeal of Part 2

Part 3—Amendment of Criminal Law Consolidation Act 1935

4 Amendment of section 257—Criminal defamation

Part 4—Amendment of Evidence Act 1929

5 Substitution of section 33

33 Discovery in action for defamation

Part 5—Amendment of Limitation of Actions Act 1936

6 Substitution of section 37

37 Defamation proceedings generally to be commenced within 1 year

Part 6—Transitional provisions

7 Savings, transitional and other provisions relating to this Act

8 Application of amendments to Limitation of Actions Act 1936

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Defamation Act 2005.

2—Commencement

This Act will come into operation on 1 January 2006.

3—Objects of Act

The objects of this Act are—

(a) to enact provisions to promote uniform laws of defamation in Australia; and

(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and

(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and

(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.

4—Interpretation

In this Act—

Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence);

Australian jurisdiction means—

(a) a State; or

(b) a Territory; or

Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry);

country includes—

(a) a federation and a state, territory, province or other part of a federation; and

(b) an Australian jurisdiction;

document means any record of information, and includes—

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(d) a map, plan, drawing or photograph;

electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both;

general law means the common law and equity;

matter includes—

(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and

(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication; and

(d) a picture, gesture or oral utterance; and

(e) any other thing by means of which something may be communicated to a person;

offer to make amends means an offer to make amends under Part 3 Division 1;

parliamentary body means—

(a) a parliament or legislature of any country; or

(b) a house of a parliament or legislature of any country; or

(d) a committee of a house or houses of a parliament or legislature of any country;

publication of matter means communication of the matter by one person to any other person;

substantially true means true in substance or not materially different from the truth;

Territory means the Australian Capital Territory or the Northern Territory;

this jurisdiction means this State.

5—Act binds Crown

This Act binds the Crown in right of South Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 3—Resolution of civil disputes without litigation

Division 1—Offers to make amends

12—Application of Division

(1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).

(2) This Division applies despite the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.

(3) However, nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division.

13—Publisher may make offer to make amends

(1) The publisher may make an offer to make amends to the aggrieved person.

(2) The offer may be—

(a) in relation to the matter in question generally; or

(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries or may carry.

(3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.

(4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.

14—When offer to make amends may be made

(1) An offer to make amends cannot be made if—

(a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person; or

(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.

(2) A notice is a concerns notice for the purposes of this section if the notice—

(a) is in writing; and

(b) 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).

(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.

(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.

15—Content of offer to make amends

(1) An offer to make amends—

(a) must be in writing; and

(b) must be readily identifiable as an offer to make amends under this Division; and

(c) if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited; and

(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and

(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and

(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer; and

(g) 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)—

(i) 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

(ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or

(iii) the particulars of any correction or apology made, or action taken, before the date of the offer.

(2) Without limiting subsection (1)(g)(ii), an offer to pay compensation may comprise or include any one or more of the following:

(a) an offer to pay a stated amount;

(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person;

(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person;

(d) an offer to pay an amount determined by a court.

(3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine—

(a) if the offer provides for a court to determine the amount of compensation payable under the offer—the amount of compensation to be paid under the offer; and

(b) any other question that arises about what must be done to carry out the terms of the offer.

(4) The powers conferred on a court by subsection (3) are exercisable—

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and

(b) except as provided in paragraph (a)—by the Supreme Court or the District Court.

16—Withdrawal of offer to make amends

(1) An offer to make amends may be withdrawn before it is accepted.

(2) A publisher who has withdrawn an offer to make amends may make a renewed offer.

(3) A renewed offer may (but need not) be in the same terms as the withdrawn offer.

(4) A renewed offer is to be treated as a new offer (including for the purposes of section 14).

(5) However, the time limit specified in section 14 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if—

(a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer; and

(b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person.

17—Effect of acceptance of offer to make amends

(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.

(2) A court may (but need not)—

(a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer; and

(b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.

(3) The powers conferred on a court by subsection (2) are exercisable—

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question—by that court in those proceedings; and

(b) except as provided in paragraph (a)—by the Supreme Court or the District Court.

18—Effect of failure to accept reasonable offer to make amends

(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—

(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and

(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and

(2) In determining whether an offer to make amends is reasonable, a court—

(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account—

(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and

(ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and

(b) may have regard to—

(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and

(ii) any other matter that the court considers relevant.

19—Inadmissibility of evidence of certain statements and admissions

(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).

(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine—

(a) any issue arising under, or relating to the application of, a provision of this Division; or

(b) costs in defamation proceedings.

Division 2—Defences

22—Scope of defences under general law and other law not limited

(1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion or liability.

(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

23—Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

24—Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

25—Defence of absolute privilege

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if—

(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)—

(i) the publication of a document by order, or under the authority, of the body; and

(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law; and

(iii) the publication of matter while giving evidence before the body; and

(iv) the publication of matter while presenting or submitting a document to the body; or

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and

(ii) the publication of matter while giving evidence before the court or tribunal; and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal; or

(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section.

(3) For the purposes of subsection (2), the proceedings of a body referred to in that subsection includes any words spoken and acts done in the course, or for the purposes, of those proceedings.

26—Defence for publication of public documents

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

(2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about—

(a) the formal requirements for the content or layout of the report or document; or

(b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body,

the report or document is a public document despite that non-compliance.

(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section—

public document means—

(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law; or

(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including—

(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and

(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination; or

(i) is authorised to be published; or

(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body; or

(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public; or

(e) any record or other document open to inspection by the public that is kept—

(i) by an Australian jurisdiction; or

(ii) by a statutory authority of an Australian jurisdiction; or

(iii) by an Australian court; or

(iv) under legislation of an Australian jurisdiction; or

(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section.

27—Defences of fair report of proceedings of public concern

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(2) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and

(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and

(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section—

law reform body of a country means a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country;

learned society means a body, wherever formed—

(a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field; and

(b) authorised by its constitution—

(i) to exercise control over, or adjudicate on, matters connected with those objects; and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia;

ombudsman of a country means a person (however described and whether or not permanent or full-time) authorised by law to investigate complaints about the conduct of any public officials or public bodies of that country;

proceedings of public concern means—

(a) any proceedings in public of a parliamentary body; or

(b) any proceedings in public of an international organisation of any countries or of the governments of any countries; or

(c) any proceedings in public of an international conference at which the governments of any countries are represented; or

(d) any proceedings in public of—

(i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations; or

(ii) any other international judicial or arbitral tribunal; or

(e) any proceedings in public of a court or arbitral tribunal of any country; or

(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country; or

(g) any proceedings in public of a local government body of any Australian jurisdiction; or

(h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—

(i) a member or members of the society; or

(ii) a person subject by contract or otherwise by law to control by the society; or

(i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—

(i) a member or members of the association; or

(ii) a person subject by contract or otherwise by law to control by the association; or

(j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—

(i) a member or members of the association; or

(ii) a person subject by contract or otherwise by law to control by the association; or

(k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia; or

(l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office; or

(m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman; or

(n) any proceedings in public of a law reform body of any country; or

(o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section;

relevant objects of a learned society, sport or recreation association or trade association means—

(a) in relation to a learned society—objects of the kind referred to in paragraph (a) of the definition of learned society in this subsection; or

(b) in relation to a sport or recreation association—objects of the kind referred to in paragraph (a) of the definition of sport or recreation association in this subsection; or

(c) in relation to a trade association—objects of the kind referred to in paragraph (a) of the definition of trade association in this subsection;

sport or recreation association means a body, wherever formed—

(a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime; and

(b) authorised by its constitution—

(i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime; and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia;

trade association means a body, wherever formed—

(a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling; and

(b) authorised by its constitution—

(i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling; and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

28—Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a) the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(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—

(a) the extent to which the matter published is of public interest; and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and

(f) the nature of the business environment in which the defendant operates; and

(g) the sources of the information in the matter published and the integrity of those sources; and

(h) 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; and

(i) any other steps taken to verify the information in the matter published; and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

29—Defences of honest opinion

(1) It is a defence to the publication of defamatory matter if the defendant proves—

(a) the defamatory imputations carried by the matter of which the plaintiff complains were an expression of opinion of the defendant rather than a statement of fact; and

(b) the opinion was honestly held by the defendant at the time the matter was published; and

(d) the opinion is based on proper material.

(2) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defamatory imputations carried by the matter of which the plaintiff complains were an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and

(b) the defendant believed that the opinion was honestly held by the employee or agent at the time the matter was published; and

(d) the opinion is based on proper material.

(3) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defamatory imputations carried by the matter of which the plaintiff complains were an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and

(b) the defendant had no reasonable ground to believe that the opinion was not honestly held by the commentator at the time the matter was published; and

(d) the opinion is based on proper material.

(4) For the purposes of this section, an opinion is based on proper material if it is based on material that—

(a) is substantially true, or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(c) was published on an occasion that attracted the protection of a defence under this section or section 26 or 27 or the defence of fair comment at general law.

(5) For the avoidance of doubt, a defence under this section is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(6) A defence under this section is not defeated merely because the defendant does not prove that every statement of fact on which the opinion is based is substantially true if the opinion is shown to be an honest opinion having regard to—

(a) any facts alleged or referred to in the publication containing the defamatory matter that the defendant proves to be substantially true; or

(b) any other facts that were generally known at the time of the publication that the defendant proves to be substantially true.

30—Defence of innocent dissemination

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person—

(a) was not the first or primary distributor of the matter; and

(b) was not the author or originator of the matter; and

(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

(3) Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of—

(a) a bookseller, newsagent or news-vendor; or

(b) a librarian; or

(d) a provider of postal or similar services by means of which the matter is published; or

(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; or

(f) a provider of services consisting of—

(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or

(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form; or

(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator has no effective control; or

(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

31—Defence of triviality

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

Part 1—Preliminary

1—Amendment provisions

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 Civil Liability Act 1936

2—Amendment of section 3—Interpretation

Section 3, definition of newspaper—delete the definition

3—Repeal of Part 2

Part 2—delete the Part

Part 3—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 257—Criminal defamation

Section 257(2)—after "if the person charged would" insert:

, having regard only to the circumstances happening before or at the time of the publication,

Part 4—Amendment of Evidence Act 1929

5—Substitution of section 33

Section 33—delete the section and substitute:

33—Discovery in action for defamation

(1) A person who is required to answer a question, or to discover or produce a document or thing, in civil proceedings for defamation is not excused from answering the question or discovering or producing the document or thing on the ground that the answer to the question or the discovery or production of the document or thing might tend to incriminate the person of an offence.

(2) However, any answer given to a question, or document or thing discovered or produced, by a natural person in compliance with the requirement is not admissible in evidence against the person in any other action or proceedings.

Part 5—Amendment of Limitation of Actions Act 1936

6—Substitution of section 37

Section 37—delete the section and substitute:

37—Defamation proceedings generally to be commenced within 1 year

(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

(2) However, a court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of the publication (but no further extension is to be allowed under any other provision of this Act).

Part 6—Transitional provisions

7—Savings, transitional and other provisions relating to this Act

(1) This Act applies to the publication of defamatory matter on or after the commencement of this Act, unless subsection (2) provides otherwise.

(2) The provisions of this Act (other than this section) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the post-commencement cause of action) if—

(a) the post-commencement cause of action is one of 2 or more causes of action in proceedings commenced by a plaintiff; and

(b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); and

(c) one or more of the other causes of action in the proceedings accrued before the commencement of this Act (a pre-commencement cause of action); and

(d) the post-commencement cause of action accrued no later than 12 months after the date on which the earliest pre-commencement cause of action in the proceedings accrued.

(3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted:

(a) any cause of action that accrued before the commencement of this Act,

(b) any post-commencement cause of action to which the other provisions of this Act do not apply because of subsection (2).

(4) In this section—

existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this Act.

8—Application of amendments to Limitation of Actions Act 1936

(1) Section 37 of the Limitation of Actions Act 1936 as re-enacted by Part 5 clause 6 of this Schedule (the substituted section) applies to the publication of defamatory matter on or after the commencement of that section, unless subclause (2) provides otherwise.

(2) The provisions of the substituted section do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of that section (the post-commencement cause of action) if—

(a) the post-commencement cause of action is one of 2 or more causes of action in proceedings commenced by a plaintiff; and

(c) one or more of the other causes of action in the proceedings accrued before the commencement of the substituted section (a pre-commencement cause of action); and

(d) the post-commencement cause of action accrued no later than 12 months after the date on which the earliest pre-commencement cause of action in the proceedings accrued.

(3) The existing limitation law continues to apply to the following causes of action in the same way as it would have applied to those causes of action had the substituted section not been enacted:

(a) any cause of action that accrued before the commencement of the substituted section;

(b) any post-commencement cause of action to which the substituted section does not apply because of subclause (2).

(4) In this clause—

existing limitation law means the provisions of the Limitation of Actions Act 1936 that applied in relation to the limitation period for defamation actions immediately before the commencement of the substituted section.

South Australian Bills

DEFAMATION BILL 2005