Defamation and the media

WORDS: Brendan Nyst - Nyst Legal PHOTOGRAPHY Supplied

New laws have put additional roadblocks in the way of anyone wanting to sue members of the media for defamation, but they certainly don’t just give a free pass to the press.

 I heard the government recently changed the defamation laws to protect the media? Does this mean they can now print what they want?

The short answer is no, absolutely not. In July this year, the Palaszczuk Government introduced some pretty sweeping changes to our defamation laws, which were sold as a “step to protect freedom of expression for Queenslanders”.

By and large, the new laws have put additional roadblocks in the way of anyone wanting to sue for defamation, but they certainly don’t just give a free pass to the press.

For some time, there has been a push throughout Australia by media outlets and journalists to relax defamation laws in favour of freedom of speech. Naturally, it’s not surprising those plying their trade in journalism are keen to see our laws become more akin to the legal landscape in the United States, which generally gives people greater scope to say and print what they want without landing in hot water. The new Queensland laws are a step in that direction.

The legislation establishes new defences available to journalists and academics in respect of certain claims. And from July 1, statements published online are no longer considered to be republished every time they are read, meaning anyone intending to pursue a claim for online defamation will have much tighter time frames to initiate proceedings.

Perhaps the most notable amendment to our former defamations laws is the introduction of a new so-called ‘serious harm’ threshold. Plaintiffs in a defamation action will now have to demonstrate to a court that the defamatory publication caused serious harm to their reputation. The introduction of this prerequisite is reportedly designed to reduce borderline or trivial claims where a written or verbal publication, while defamatory, has caused little harm to the reputation of the person defamed.

Exactly what ‘serious harm’ entails will be a matter for interpretation and it will be interesting to see precisely where the courts ultimately draw the line on that issue. We do know from experience with similar laws in the United Kingdom that plaintiffs will need to go further than simply proving the defamatory statements were circulated to third parties.

The court will need to weigh up various factors, such as the seriousness of the defamatory imputations and the scope of circulation of the comments.

Slanderous statements made to a small group of people at the pub, for example, may no longer be sufficient to ground an actionable claim, depending on the circumstances. In the case of businesses, some quantifiable economic loss to revenue will no doubt need to be demonstrated in clear terms.

The purported purpose of these new laws is to protect freedom of speech and reduce the amount of litigation clogging up the courts, not simply to protect the media. But they will no doubt potentially embolden some journalists and other members of the public to engage in slanderous conduct. That’s the trade-off. Only time will tell if the right balance has been struck.