The continuing evolution of defamation law in Victoria

For some time now, defamation legislation has been a hotly debated area in the wake of numerous high profile claims and the increasingly widespread use of social and electronic communications. This prompted a review in July 2020 which resulted in the Attorney-Generals of the Australian states and territories agreeing to introduce various amendments to the uniform model defamation legislation.

On 11 November 2020, the Victorian parliament passed the Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Bill) making various changes to the Defamation Act 2005 and the Limitation of Actions Act 1958. In summary, some of the critical changes¹ include the following:

• providing that serious harm is an element of the cause of action for defamation (clause 21)
• a new defence in respect of the publication of defamatory matter about issues of public interest (clauses 31 and 32)
• clarifying the defence of honest opinion and removing the defence of triviality having introduced the serious harm element (clauses 34 and 35) in addition to a new defence in respect of peer-reviewed matters published in academic or scientific journals (clause 33)
• introducing a single publication rule to ensure that the general one-year limitation period for defamation actions is effectual in relation to online publications (clause 41)
• clarifying the operation of the cap on damages for non-economic loss (cl 36).

Implications

The above changes will benefit defendants in defamation proceedings in light of the additional defences and clarification of those already available. Further, it will be more difficult for plaintiffs to successfully pursue defamation actions with the addition of the new ‘serious harm’ element. It is hoped this new element will encourage early resolution of defamation proceedings (which are traditionally significantly protracted) by encouraging the issue of serious harm to be dealt with as a threshold issue². It follows that there is potential for less defamation claims to be commenced in circumstances where the bar is now set higher for plaintiffs in this space.

Finally, the clarification of a single publication rule in respect of online publications should bring greater clarity for both plaintiffs and defendants alike, given the common use of social media and other forms of electronic communication.