There are three elements to defamation, namely that the materials must have been published to at least one person other than the person defamed, the person defamed must be identifiable and the communication must be defamatory by an ordinary reasonable person, resulting in, or likely to result in, serious harm to a person’s reputation or serious financial harm to an excluded corporation.
Australia has a uniform defamation scheme known as the Model Defamation Provisions (MDPs). It is enacted by each state and territory. A review of the MDPs from 2019 to 2020 examined the question of internet intermediary liability in defamation, whether defamation law has a silencing effect on reports of alleged unlawful, and whether absolute privilege should be extended to these circumstances. Based on stakeholder feedback, draft changes were introduced and legislation amendments are on the horizon.
The Attorney-General has adopted draft legislation, set to commence in January 2024, which widens the protection of digital intermediaries and aims to strike a better balance between protecting reputation and not unreasonably limiting freedom of expression. Further recommendations, whilst unfinalised, also support absolute privilege being extended to victims, complainants, and witnesses who publish or report to the police and other statutory bodies such as anti-discrimination organisations, equal opportunity commissions, and human rights organisations for sexual crimes and offences.
It was notable that no recommendations were given for penalties in cases where the reporting by the alleged victim was malice; it was proposed that balancing encouraging under-reported events such as child abuse, sexual misconduct, and domestic violence outweighed any risk of reputational damage to alleged offenders. It serves the public interest to reduce the barriers of reporting such conduct and lowering the bar to speaking out. These measures are important as, traditionally, victims of sexual abuse and violence speaking out can sometimes be silenced by costly defamation proceedings, especially where it involves two individuals with disparate financial resources.
However, the defence of absolute privilege was not recommended to extend to reports or publications made to the employer within the workplace context; this is to give space for reforms already in place and creates a positive onus on employers to implement policies that seek to improve workplace culture and reduce workplace misconduct. Furthermore, if the defence were extended to the workplace, then the business certainty of corporations may be impacted as external parties can then closely scrutinise the company upon any complaint. As the reporting of domestic violence assault and sexual assault has increased over the past half-decade, legislative changes were needed to accommodate this cultural shift.
In short, the proposed amendments provided further guidance for an increasingly digital society and allows the Absolute Privilege defence to extend to reporting crimes of a sexual nature to the police and to statutory third parties, whether or not the report was false and malicious.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
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