Defamation and daylight saving
I went to Brisbane on the worst weekend of the year. No, not the football grand finals, but the day the clocks go forward. I lost an hour coming back without having gained an hour going up.
In summer, the different time zones can be annoying, but daylight saving is understandably a state issue. Can the same still be said for defamation? South Australia has said that it only supports ‘aspects’ of the Stage Two defamation reforms about digital intermediaries, while Western Australia and the Northern Territory still haven’t adopted the Stage One reforms that came into effect in other jurisdictions in 2021.
There’s a number of features to the Stage One and Stage Two reforms, but let’s recap on what, in the main, they mean for media freedom in Australia.
First, there’s the new ‘public interest’ defence which is currently being tested in actions such as the ABC’s defence of its reports about Heston Russell and Nine’s defence of its reports on Dr Munjed Al Muderis. And, as media lawyer Michael Bradley told us, the public interest defence would have been run by Crikey against Lachlan Murdoch on the ‘unindicated co-conspirators' piece, had that matter proceeded to trial.
Another benefit that arises at the outset of a defamation action is the ‘substantial harm’ test that should weed out lesser claims to reputational damage. At the other end of an action, there’s the reining in of damages through clarification on how the cap on damages works. And we shouldn’t forget the introduction of a ‘single publication rule’ that changes the way the limitation period works so that publishers won’t be endlessly liable for a new action every time someone downloads an old article.
That’s all in Part One. Two weeks ago, the Standing Committee of Attorneys-General (SCAG) announced that the states and territories had – largely – reached agreement on the Stage Two reforms on intermediary liability. When they take effect next year, these changes will go some way towards addressing the open liability of publishers for third party comments on their social media sites by extending the innocent dissemination defence, providing they have a complaints system and take action when notified. The Stage 2 reforms will also introduce a limited exemption from liability for search engines.
It’s hard to see how these reforms have been resisted by some states and territories. It was almost 30 years ago that the media ownership rules changed to allow ‘national’ TV networks to develop. For some time after that, media companies struggled with mismatched state and territory defamation laws, before a uniform scheme was introduced in 2006. In an era when the struggle should be focused on the regulation of multi-national digital platforms and generative AI, it doesn’t seem too much to expect that Australian lawmakers could agree on a standard approach to defamation – one that supports local and original news and commentary and recognises how investigative journalism can be hampered by inconsistent and outdated defamation laws.
Does our fragmented approach to daylight saving tell us anything about our now fractured model for national defamation laws? While my friend in Brisbane is resigned to living without the benefits of daylight saving, her parents have devised their own plan. This otherwise conservative couple living in a Brisbane bayside suburb has taken the unusual step of turning all the clocks forward an hour, giving them an extra hour of daylight in the afternoon and alarming guests who aren’t forewarned. There’s no real equivalent in the world of defamation. Is it time for the national scheme to become federal?
Derek Wilding, CMT Co-Director
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