A Quick Guide to Queensland’s Modernised Defamation Laws

By Jason Papoutsis

What is Defamation?

Defamation is the publishing of unsubstantiated information which damages a person’s reputation.

To be considered defamatory, a statement must be false, communicated to a third party, and cause harm to the reputation of the person or organization in question. Defamation is considered a civil wrong and can result in a claim for damages by the person or organization who has been defamed.

When determining whether a statement is defamatory, the Court will consider several judicial principles.  Most commonly the Courts will consider whether a reasonable person seeing, hearing, or reading the matter will likely:

• lead to a lowering of the relevant person’s reputation
• lead others to think less of them
• make others shun or avoid them
• cause others to ridicule, hate or despise them.

 

Social Media Defamation

Defamation laws apply to statements made on social media (such as Facebook, Instagram, Twitter, Threads, and TikTok) just as they do to other forms of communication. A person can be liable for defamatory statements made on social media if the statement is false, has been communicated to a third party, and has caused harm to the reputation of another person or organization.

See Social media defamation laws.

However, the increased prevalence of social media use has added some complexities to the law of defamation. For example, it may be more difficult to identify the person responsible for making a defamatory statement on social media, and the speed and reach of social media means that defamatory statements can spread rapidly and cause significant harm.

The grapevine effect, which recognises that the dissemination of defamatory material can continue and is impossible to track, is often exacerbated by posts made on social media.  Third parties who view these publicly posted publications on social media may screenshot and share the publications to additional third parties and can continue to spread.

 

New Requirement – Serious Harm Must be Proven  

Following amendments made to the Defamation Act on 1 July 2021, a person who claims they have been defamed must also prove that they suffered “serious harm” as a result of the defamatory matters said or written.

Without proving that there is a “serious harm” element, they will not be able to commence or continue defamation proceedings in Court.

 

Recent changes to Defamation Laws in Queensland

In July 2021, significant changes were made to the Defamation Act 2005 (Qld) to modernise Queensland’s defamation laws and to provide a more balanced and fair approach to protecting freedom of speech and reputation.

Some of the key changes to the legislation include:

• Concerns Notice Now Mandatory: A concerns notice is now a prerequisite before a person can institute proceedings in Court, whereas previously the old legislation did not require a concerns notice to be served to the offending party.

 

• Increased Threshold for Defamation Claims: The threshold for making a defamation claim was raised, by introducing the serious harm element discussed in the previous section, thereby making it more difficult for trivial or frivolous claims to be brought.

 

• New Defences: A new public interest defence was introduced, allowing a person to make a statement on a matter of public interest if they had a reasonable belief that it was true and in the public interest to make it. Similarly, a new defence was also introduced for peer-reviewed statements/assessments in a scientific or academic journal.

 

• Single Publication Rule: The single publication rule was introduced, which limits the time within which a defamation claim can be made to one year from the date of first publication. This resolved a loophole concerning online publications where the republishing or ‘sharing’ of a publication constituted a new publication, thereby resetting the limitation period each time it was published or shared.

 

Concerns Notices & Out of Court Settlements

As stated in the earlier section, Concerns Notices are now mandatory if a plaintiff wants to sue for defamation in Court.

Essentially, a Concerns Notice is a type of legal notice that is used in Queensland to raise concerns about potentially defamatory material. A concerns notice is a formal request that the person responsible for the material remove or alter it to avoid a defamation claim.

The Concerns Notice also provides the other party (the defendant) an opportunity to make an offer to make amends.  An offer to make amends is a procedure provided under the Defamation Act which allows a formal offer of amends to be made to the person who has been defamed.

An offer to make amends must be in writing and must set out the steps that the person making the offer is willing to take to make amends for the defamatory statement. This may include, for example, retracting the statement, correcting any false information, making a public apology, or paying compensation to the person who has been defamed.

The person who has been defamed may accept or reject the offer of amends. If the offer is accepted, the matter is resolved without the need for court proceedings. If the offer is rejected, the person who made the offer to make amends may still face a defamation claim in court, but the plaintiff cannot use any apology contained within the offer to make amends as evidence in those proceedings.

It is important to note that the offer to make amends does not act as a defence to a claim, and is intended to provide a quicker and less costly alternative to court proceedings.  The exception to this rule, however, is that the defendant may rely upon the plaintiff’s failure to accept a reasonable offer to make amends as a defence to the claim if all requirements for that offer are satisfied under the legislation.

Accordingly, the person considering making an offer to make amends should seek legal advice on whether it is appropriate in the circumstances, and if so, to ensure it is more likely to comply with the legislation and be considered ‘reasonable’.

 

Notable Cases where Substantial Damages were Awarded

In most cases, proceeding to Court for defamation is not a commercial endeavour, and the parties should attempt to resolve the matter out of court to avoid the costs associated with legal proceedings.

However, there have been several notable cases in Queensland where substantial damages were awarded, as follows:

• Carter v Bauer Media Pty Ltd [2017] QSC 16: In this case, actress Rebel Wilson claimed that she had been defamed by Bauer Media, which published articles in several magazines suggesting that she was a liar and a serial exaggerator.The court found in favour of the plaintiff and awarded her damages of $4.56 million, which was one of the largest defamation awards in Australian history.

 

• Queensland Newspapers Pty Ltd v Lacey [2018] QSC 156: In this case, former school principal Julie Dawn Lacey claimed that she had been defamed by The Courier-Mail newspaper, which published articles suggesting that she had been involved in financial improprieties at her school.The court found in favour of the plaintiff and awarded her damages of $350,000.

 

• Johansson v Fairfax Media Publications Pty Ltd [2015] QSC 365: In this case, former Australian Football League player Daniel Johansson claimed that he had been defamed by articles published in The Sydney Morning Herald and The Age newspapers, which suggested that he had been involved in a drug-related incident.The court found in favour of the plaintiff and awarded him damages of $180,000.

 

Defences to Defamation

There are several defences available to a claim of defamation. Some of the most common defences include:

• Truth (also known as Justification): If the defamatory statement is true, it is a complete defence to a claim of defamation. This defence is often referred to as the “defence of justification.”

 

• Contextual Truth: If the publication conveys 1 or more imputations that are substantially true (the contextual imputation), any other defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of at least 1 of the contextual imputations which are substantially true.In other words, even if the publication contains some minor inaccuracies or exaggerations, if another aspect of the publication is substantially true, the Court may rule that the publication is not defamatory.

 

• Qualified Privilege: Qualified privilege is a defence that applies where the person making the defamatory statement had a legal, moral, or social duty to make the statement, and the recipient of the statement had a corresponding interest in receiving it.For example, a fair and accurate report of proceedings in a court of law is protected by the defence of qualified privilege.

 

• Innocent Dissemination: Innocent dissemination is a defence that applies to those who publish or distribute defamatory material but did not know, and had no reason to know, that the material was defamatory.This defence is particularly relevant for internet service providers and other intermediaries who distribute or publish content that is generated by others.

 

• Public Interest: The Defamation Act 2005 (Qld) introduced a new public interest defence that allows a person to make a statement on a matter of public interest if they had a reasonable belief that it was true and in the public interest to make it.

The defences listed above are only summaries and the exact legal tests applied by the Courts have been developed in common law over an extended period of time.

A person should not publish a publication in reliance of these defences, or any other defences, without first obtaining legal advice.

 

What If I Ignore a Defamation Claim?

If you are properly served with a defamation claim, and you ignore those proceedings and do not take any steps to defend the proceedings, a default judgment can be entered against you.

If this occurs, you will need to obtain advice from a lawyer immediately on the possibility of setting aside the default judgment.

The Court’s test or considerations for deciding whether a default judgment should be set aside are outlined in the Uniform Civil Procedure Rules 1999. The Court will consider several factors when deciding whether to set aside a default judgment, including:

• Merits of the case: The Court will consider the strength of the plaintiff’s case and the prospects of success if the case were to proceed to a full hearing.If the defendant has a strong case and is likely to succeed, the Court may be more likely to set aside the default judgment.

 

• Explanation for non-appearance: The Court will consider the reasons for the defendant’s non-appearance and whether those reasons are valid.For example, if the defendant was unable to attend court due to illness or other circumstances beyond their control, the Court may be more likely to set aside the default judgment.

 

• Prejudice to the plaintiff: The Court will consider the extent to which the plaintiff will be prejudiced if the default judgment is set aside.If the plaintiff has taken steps to enforce the judgment, for example by selling the defendant’s property, the Court may be less likely to set aside the default judgment.

 

• Delay: The Court will consider the length of time that has elapsed since the default judgment was made and whether the defendant has acted promptly to apply to have the judgment set aside.If the defendant has delayed in making the application, the Court may be less likely to set aside the default judgment.

 

• Public policy considerations: The Court will consider any public policy considerations that may be relevant, such as the need to ensure that default judgments are not used to undermine the administration of justice.

These factors are not exhaustive, and the Court may consider other factors as well. The outcome of an application to set aside a default judgment will depend on the specific circumstances of each case.

 

Why Potts Lawyers?

When choosing a defamation lawyer, you need to be confident that your lawyer has experience in that field, pays good attention to detail, and has strategic thinking skills to critically examine the materials and develop an effective strategy to achieve your goals.

You should also choose a lawyer who will provide you with options on how to negotiate a resolution early, to manage the risks inherent to litigation, and potentially minimise your exposure to legal costs and adverse orders for damages that could be made against you.

Contact Us For Legal Advice

Potts Lawyers are experienced in assisting clients with all aspects of defamation disputes, whether you are a plaintiff or a defendant.

If someone has defamed you or is accusing you of defaming them, you should contact Potts Lawyers to organise a conference with one of our lawyers in the litigation department, so that they can advise you on your options and a strategy for resolving the dispute quickly.

Request a free online consultation or call our Gold Coast Legal Office on (07) 5532 3133 or our Brisbane Legal Office on (07) 3221 4999.