Defamation law reforms helpful, but they should be nationally uniform

In Australia, the media faces a formidable task breaking difficult stories given constraints such as weak freedom of information laws, lack of whistleblower protection and a plethora of defamation laws.

Just as the colonies went their own way building railway lines of different gauges in the 19th century, Australia’s defamation laws continue to differ between states and territories so much that your postcode can determine your success in court.

Despite some earlier legislative reforms, Sydney is Australia’s defamation hotspot and has emerged as one of the defamation capitals of the world.

But from July 1, the defamation laws in NSW and the ACT are changing in tandem to introduce new defences, including a defence to help Facebook page administrators fend off costly claims over comments by others. Victoria is among the states expected to follow suit, as are Queensland and Tasmania, but some jurisdictions – Western Australia, South Australia and the Northern Territory – won’t. The differences in the law mean in theory it will be easier to bring, and win, a defamation claim in some parts of the country than others.

According to the Herald’s legal affairs reporter Michaela Whitbourn, it hasn’t always been as confusing. In 2006, every state and territory in Australia introduced near-identical laws to create an almost uniform system of defamation laws across the country – but cracks emerged in 2021, and again in recent times as some high-profile cases turned on public interest defences.

The 2021 reforms, led by NSW, included a serious harm threshold to discourage trivial lawsuits, a new public interest defence designed to protect investigative journalism, measures to reduce payouts and provisions aimed at encouraging matters to be resolved outside court.

From Monday, the latest reforms make it easier for Facebook page administrators to fend off defamation claims over comments posted by others on their page, exempt liability for some online publishers, such as search engines generating non-sponsored links to websites they did not create, and provide greater protections to prevent sexual assault complainants and others being sued over reports to police.

Western Australia and the Northern Territory opted out of changes made in every other state and territory in 2021, and regrettably they are staying well away from the latest reforms. The two are now, in theory, the most plaintiff-friendly jurisdictions in the country.

Despite the blatantly obvious fact that the overwhelming majority of defamation cases now involve the internet, South Australia too is making itself a target for plaintiffs seeking a favourable outcome by not introducing laws relating to online publications.

University of Sydney professor David Rolph said it was not defensible in a country of 27 million to have so many defamation laws as it increased costs and encouraged people to go forum-shopping to find a jurisdiction in which they considered their claim would receive a favourable hearing and succeed. We agree.

Defamation law is crucial to regulating a free press. Citizens must have access to the courts to demand compensation from the media for malicious damage to their reputations. Media companies should not hide behind legal arguments when genuine mistakes are made.

The Herald acknowledges that some readers may find this editorial self-serving. However, we also recognise that while media is not always popular in Australia, most people can see the value for our democracy in having a free press. While it is to be regretted that Western Australia, South Australia and the Northern Territory have chosen to stand aside, we welcome reforms making defamation law more uniform, not least because they help us investigate and expose cases of injustice and fraud with more certainty.

Get a weekly wrap of views that will challenge, champion and inform your own. Sign up for our Opinion newsletter.