As many lawyers know firsthand, it’s been a struggle to keep up with the breakneck pace of legal changes over the past year. The legal system surrounding defamation law is particularly in flux, with amending legislation commencing on 1 July 2021 in New South Wales, Queensland, South Australia, Victoria and the Australian Capital Territory and the other state and territory jurisdictions expected to enact similar amendments soon.
The amendments implement the consolidated Model Defamation Amendment Provisions 2020 (MDAPs 2020) marking the end of the stage one review of the Model Defamation Provisions (MDPs). The stage two review of the MDPs (which, amongst other things, focuses on the responsibilities and liability of digital platforms for defamatory content published online) is underway.
With Australian laws changing at a rapid pace, it can be challenging for lawyers to have everything covered. The good news is, staying across the latest developments in defamation law is easier than you think.
The ongoing review of the Model Defamation Provisions prompts lasting changes to legal practice
The sources of defamation law in Australia include the common law and the uniform defamation legislation.
The MDAPs 2020 introduce a number of significant changes to the uniform defamation legislation, including:
- The introduction of the single publication rule which means that the time limitation period (of one year) for the purposes of legal action will run from the date the material is first published.
- The introduction of a serious harm threshold with respect to damage suffered from the allegedly defamatory publication.
- New defences to defamation, including a new public interest defence.
- Amendments to clarify that the cap on damages for non-economic loss applies regardless of whether an award of aggravated damages has been made, and to introduce a requirement that awards of aggravated damages be made separately to awards of damages for non-economic loss.
The maximum cap on damages was clarified in response to courts interpreting that the previous cap could be exceeded when aggravated damages were awarded and non-economic damages were considered to be excessive. For example, when it comes to defamation claims in legal action, even though the ordinary cap on non-economic damages at the time was $398,500:
- In Rush v Nationwide News Pty Ltd (No 7)  FCA 496, the actor Geoffrey Rush was awarded almost $2.9 million in damages. This comprised $850,000 in general damages and aggravated damages, $1.9 for past and future economic loss and $42,000 interest; and
- In Wagner & Ors v Harbour Radio Pty Ltd & Ors  QSC 201, Alan Jones and two radio stations were ordered to pay a record payout of more than $3.7 million damages in total for defaming a Queensland family. Alan Jones and 2GB radio were ordered to pay each plaintiff damages including aggravated damages of $750,00 plus interest. Alan Jones and 4BC radio were ordered to pay each plaintiff damages including aggravated damages in the sum of $100,000 plus interest.
How can you instantly be an expert on brand new law?
Even the most experienced lawyers can’t immediately be experts on newly enacted law, changing regulations, or the impact of recent court decisions. After all, it’s impossible to be an expert on something that didn’t exist yesterday.
Beyond that, who has time to constantly stay on top of new developments while also continuing to practice law full time? When the landscape has shifted as dramatically as it has over the past year, it becomes difficult.
What if you had a whole team of lawyer writers be the experts in new legal and regulatory developments for you? There are legal guidance tools that do just that. Dedicated lawyer writers who stay on top of these and other changes in the legal realm in real time and provide practicing lawyers with updated, accessible resources. Because that’s their full-time job – keeping you informed.
For example, in addition to legal updates for subscribers, Practical Law’s resources include:
- Toolkit, Defamation. A guide to Practical Law’s resources dealing with defamation.
- Practice note, Defamation. A note explaining the principles of defamation law in Australia.
- Practice note, Defamation defences. A note explaining the defences to civil defamation actions available under the common law and under uniform defamation legislation in Australia.
- Checklist, Table of defamation damages awards. A table setting out the range of damages that courts have been recently prepared to award in key defamation cases, taking into account the nature of the defamatory publication (such as whether the publication was online) and the seriousness of the defamatory imputations.
- Legislation tracker, Defamation reform. A legislation tracker charting developments relating to the Model Defamation Amendment Provisions 2020 in Australian states and territories.
Practical Law sets out (and regularly updates) the most recent changes and how jurisdictions may differ from one another.
A mentor for new lawyers
New lawyers may not know all the relevant laws in a practice area, nor have access to the correct standard forms and documents. For new lawyers, or anyone unfamiliar with a practice area, Practical Law also offers incredibly helpful guidance. For example, overview practice notes are a great starting point for new lawyers trying to get the lay of the land.
As lawyers around them become busier, they might not know who to turn to for the answers they need. With the right online legal resources, they have easy access to critical legal know-how. From updated standard documents and clauses to checklists and practice notes, they will get the guidance they need.
It’s not just new lawyers who need extra guidance
Very few busy lawyers have the time necessary to dive into the various sources of defamation law in Australia so they can quickly become the expert they want to be. The Practical Law lawyer writers do this for you by looking at all of this in tremendous detail and then creating usable, digestible resources for you to access.
Commercial law is a vast practice area with subspecialties within subspecialties. Some of those may be more familiar than others. For instance, when a routine advertising legal clearance for social media becomes a legal advice on defamation claims, you may need a little extra help knowing where to begin and what questions to ask.
Any lawyer venturing outside of their comfort zone will feel more confident taking on new matters when they know they have access to everything they need. Whether it’s keeping a client you already have or actively growing your practice, knowing you have access to expert guidance – particularly in areas you may not feel like an expert – is invaluable.
Get access to a team of lawyer writers waiting to help you
With the frequency and speed of legal changes, every lawyer needs a little extra assistance staying up to date. See how Practical Law and its team of full-time lawyer writers can help you with the research and expertise needed to successfully navigate the shifting legal terrain.