Stage 2 Defamation law reforms - what to expect in 2023 and beyond

• Published date: 03 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Libel & Defamation, Social Media
• Law Firm: Bartier Perry
• Author: Mr Adam Cutri and David De Mestre
• topic: Internet, Media and Communications

Australia's defamation laws face further changes in addition to the reforms made to the Defamation Act, which commenced on 1 July 2021. We explain those earlier legislative developments here.

The next stage of development focuses on modernising Australia's defamation laws to align with current social media and internet usage, following landmark High Court decisions in Fairfax Media Publications Pty Ltd v Voller & ors [2021] HCA 27 (Fairfax v Voller) and Google LLC v Defteros [2022] HCA 27 (Defteros).

This article identifies what we know so far about the proposed reforms and discusses what claimants and practitioners may expect to see in defamation law in 2023 and beyond.

Proposal history

A national framework for model defamation provisions was enacted in 2005 (Model Provisions), with each state and territory responsible for implementing the Model Provisions.

Stage 1 of the amendments to the Model Provisions were approved by the former Council of Attorneys-General on 27 July 2020 and implemented on and from 1 July 2021. The Stage 1 amendments to the Model Provisions introduced, among other things, new statutory defences and an additional, mandatory "serious harm" element for defamation actions.

The Stage 2 review of the Model Provisions commenced with a discussion paper released on 31 March 2021, seeking submissions on issues to be canvassed in the second stage reforms. A draft version of the Stage 2 Part A Model Defamation Amendment Provisions (Stage 2 Provisions) and an accompanying Background Paper were released for public consultation on 12 August 2022.

On 9 December 2022, the Stage 2 Provisions were approved in principle by the Standing Council of Attorneys-General. The anticipated commencement date for the Stage 2 Provisions, that have been agreed in principle so far, is 1 January 2024.

Proposed reforms

The proposed reforms must strike a balance between freedom of expression and protecting individuals from reputational damage...