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How your Western Australian postcode could affect your success in a defamation case

On 26 June, The Sydney Morning Herald published an article by Michaela Whitbourn titled, ‘How your postcode could affect your success in a defamation case’. The piece considered how defamation laws around the country are no longer uniform and are about to become even less so.

The article explained that since 2021, Australian defamation laws have fragmented as Australia’s States and Territories have not taken a uniform approach to implementing changes recommended by a NSW-led law reform process.

It was said, ‘[d]isunity first set in when Western Australia and the Northern Territory opted out of changes made in every other state and territory in 2021, after a reform process led by NSW’.

We would frame the history differently. Disunity first set in when NSW charged ahead with changes that lacked the genuine national consensus required to implement coordinated law reform on a subject as politically contested as defamation law.

Michael was quoted in the article as saying:

‘I think that the NSW-led reforms, although they got attorneys-general to agree, didn’t have a genuine consensus.

I’ve been a critic of the process for a while. I don’t think the rest of the country truly came with [NSW]. Different states have different priorities.’

How defamation laws differ around Australia

The current situation is a product of 2 stages of law reform.

The first stage was the 2021 implementation of the Model Defamation Amendment Provisions 2020 in all States and Territories except Western Australia and the Northern Territory. Notable aspects of those changes include the following:

  • A requirement that plaintiffs establish they have suffered or are likely to suffer ‘serious harm’;
  • A single publication rule for online defamation, reducing the time in which a plaintiff can sue;
  • A new ‘defence of publication of matter concerning issue of public interest’, which applies where
    • (a) the matter concerns an issue of public interest, and
    • (b) the defendant reasonably believed that the publication of the matter was in the public interest;
  • Changes to the way courts evaluate damages, producing smaller damages awards; and
  • Importantly, a mandatory concerns-notice regime, meaning that plaintiffs must generally wait weeks after publication before the they can sue.

In June 2024, there are therefore 2 different systems of defamation law in Australia. From 1 July 2024, there will be an added layer of complexity as a product of the second stage of reform.

The second stage of reform notably proposed the following:

  • New defences for certain publishes of material on the internet. Although these changes will provide some benefits to ‘regular people’ like administrators of groups on Facebook, the major beneficiaries of these changes are:
    • multinational technology companies, like Google and Meta, and
    • major media companies, like News Corp, who were required to actually employ people to monitor their social media pages and moderate defamatory content following the High Court’s judgment in Voller; and
  • An extension of absolute privilege defence to people who report criminal conduct, such as sexual assault, to police and certain complaints-handling bodies.

This second stage of reform will be in force in NSW and the ACT on 1 July 2024. The Attorneys-General of most other States and Territories agreed to follow suit but haven’t yet followed suit.

South Australia, however, is not implementing the reforms that deal with internet publishing. Perhaps its legislators have the Duffy litigation in their mind, where an Adelaide woman waged a 12-year-long campaign against Google over defamatory search results.

While politicians of WA and the NT notionally agreed on these stage 2 reforms, their legislatures have not taken action on either stage of reform.

If you are a Western Australian unlucky enough to be defamed, that is a good thing.

 

Key benefits of WA defamation law

There are at least 3 major benefits to WA defamation law as compared to the defamation law applicable in NSW and other jurisdictions.

First, under WA law, one does not need to issue a ‘concerns notice’ then wait weeks before commencing defamation proceedings.

Although these changes were sold to the public as ‘encouraging settlement of disputes’, what they really do is provide media defendants—the lobbyists who convinced NSW Liberal politicians to back the changes—with a means to ‘bleed’ plaintiffs and encourage them to give up on pursuing a defamation claim. Under NSW law, you need to issue a notice crafted with rigour in its detailing of the imputations (meanings) conveyed by the matter, and you need to articulate the ways in which you have suffered serious harm. If you get it wrong, you could ruin the prospects of success in the broader dispute. So if you want to win, you need to engage expensive lawyers at the outset, spend a pile of money on them, then wait weeks before you can go to court. All the while, the poison of the defamation is spreading on ‘the grapevine’.

Michael critiqued these aspects of the changes in a 2023 article in the UNSW Law Journal, co-authored by Catherine Graville and Robyn Caroll: ‘The Evolution and Devolution of the Offer to Make Amends Regime in Australian Defamation Law’.

Secondly, under WA law, one does not need to have a preliminary dispute over ‘serious harm’. The practical impact of the serious harm element is that plaintiffs in NSW must identify in their concerns notice the ‘serious harm’ they say has been caused or is likely to be caused, further adding to upfront costs, and may be required to fight an expensive interlocutory battle at an early stage of a long war; in WA, that fight occurs at trial. The change is another tool by which commercial media companies can ‘bleed’ plaintiffs, encouraging them to give up.

Thirdly, WA law does not include the gratuitous defences for online intermediaries that will be in force in NSW and the ACT from 1 July. Most defamation plaintiffs are not looking for money; the majority simply want matter removed from the internet. One practical way to achieve that result is to go after the companies that facilitate access to the content: companies like Google and Meta. The new changes remove levers which allow Australians to achieve swift, practical justice, for the sake of satiating US-headquartered multinational technology companies.

That said, the impact of this change is more limited than NSW initially proposed as the High Court had already effected some of the change by its significant and largely unexpected result in Google LLC v Defteros, which found that Google was not liable as a publisher of defamatory websites simply by providing (non-defamatory) links to users.

Why doesn’t everyone just sue in WA?

You should. Call us.

But seriously: you might try it, though unless the dispute has a real connection to WA, the proceeding will likely be transferred to the more appropriate court under the cross-vesting scheme.

If the defamation is published in more than one Australian jurisdiction, then the court will not necessarily apply the law of the place in which it is based to determine the substantive aspects of the dispute. Under section 11(2) of the Defamation Act 2005 (WA), if there is publication in more than one Australian State or Territory, then the substantive law with which the harm occasioned by the publications has its closest connection will apply.

If you have a Western Australian postcode, you have decent chances of WA law applying, even if the matter was published around Australia. (Michael explained why in his PhD: ‘Forum Shopping in Australian Defamation Litigation’).

It may be that despite defamatory matter being widely published around Australia, the harm to the plaintiff’s reputation is more pronounced in WA. Take, for example, a defamatory article about the WA Premier published nationally. It might be read by more people in NSW purely by reason of population size, however, harm to the Premier’s reputation would have a closer connection with WA than NSW.

A recent decision makes the decision to sue for defamation in WA even smarter. In Peros v Nationwide News Pty Ltd [2014] QSC 80, Justice Applegarth—a distinguished defamation judge—determined that the mandatory requirement to issue a concerns notice before commencing proceedings, which applies under Queensland law but not WA law, was ‘procedural’ in character and did not have extraterritorial effect outside of Queensland. This means that even if the applicable law under the rule in section 11(2) is not WA law, a plaintiff still does not need to issue a concerns notice if suing in Western Australia.

(The status and significance of Peros is being challenged in proceedings currently before the Supreme Court of Western Australia. We will keep you updated.)

 

Conclusion

The major achievement of the 2005 national agreement on defamation legislation was substantial uniformity. The main beneficiaries of that agreement were commercial media organisations who no longer needed to navigate 8 separate defamation laws when publishing a story nationwide.

Ironically, by pushing politically vulnerable politicians into accepting their preferred changes to that 2005 legislation, commercial media organisations have destroyed their own achievement.

The changes introduced by the NSW-led reforms have not had any meaningful effect on the substantive law. It appears the new and modified defences will still fail where the previously available defences failed. Your postcode is unlikely to affect your prospects of success but could make it more expensive to succeed if you are not from WA.

We are grateful that WA politicians have not followed their State and Territory counterparts like lemmings off the cliff. Perhaps that was because then-Premier Mark McGowan was suing and being sued by billionaire Clive Palmer for defamation; he and WA Attorney-General John Quigley gained better insight into a defamation system that is already stacked against plaintiffs.

We hope WA law stays grounded as it is, at least until a genuine national consensus, through a genuinely transparent and rigorous reform process, can be achieved.

Alex Tharby

Principal Associate

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

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