Page 1938 - Week 07 - Wednesday, 23 June 2021
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For internet publications, publication is deemed to occur when the third party downloads the webpage rather than when it is posted by the publisher. This means there is a separate cause of action for each download and the limitation period applicable to each download will vary even though the same matter is involved. This enables plaintiffs to circumvent the purpose behind the limitation period by relying on later downloads of the same matter.
The bill inserts new section 21BA to introduce a single publication rule which provides that the applicable one-year limitation period runs from the date that the material is uploaded to the internet, except in circumstances where the subsequent publication is materially different from the first publication. This new section is modelled on section 8 of the United Kingdom Defamation Act.
Lastly, the bill clarifies and refines various aspects of defamation laws in the territory to make sense of the reforms in the context of their purpose. For example, the bill includes a clear definition of “employee” to preserve the policy intent that large corporations should not have an action in defamation. The bill inserts a new definition of “employee” in section 121 to include an individual, including an independent contractor, who is engaged in the day-to-day operations of the corporation, other than as a volunteer, and is subject to the control and direction of the corporation.
The bill also clarifies the maximum cap on damages for non-economic loss. This amendment is designed to address two principal issues that have arisen in relation to a court’s assessment of non-economic loss—that is, whether the cap operates as a scale or as a cut-off, and, secondly, whether the cap applies when a court is satisfied that aggravated damages should be awarded.
Clause 30 makes clear that the maximum amount of damages for non-economic loss sets the upper limit of the scale, with the maximum amount to be awarded only in a most serious case. The provision does not limit the court’s power to award aggravated damages if the award is warranted in the circumstances. Substituted section 139F(2B) provides that an award of aggravated damages is to be made separately to any award of damages for non-economic loss.
As I said on the bill’s introduction, this does not mark the end of reforms to defamation laws; a second stage, focusing on the liabilities and responsibilities of digital platforms for defamatory content published online, is in progress. Stage 2 will consider, among other issues, take-down procedures for defamatory content published online and the extension of privilege to statements made to employers about allegations of unlawful conduct. I look forward to working with my state and territory counterparts in further progressing reforms to improve the effective operation of defamation laws in this country.
In conclusion, the amendments in this bill go a long way to reforming and modernising defamation laws in the territory and to ensuring that our laws continue to be in harmony with those around the country. I am confident the bill provides the appropriate balance required in defamation laws between freedom of expression and the right to protect one’s reputation. I commend the bill to the Assembly.
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