This editorial seeks to cover a lot of ground. It acknowledges that there have been recent changes to defamation law as part of the first stage of reforms to the national, uniform defamation laws. It mentions the new requirement of serious harm to reputation.
It is also worth mentioning the new public interest defence, which is as yet untested in the courts. The purpose of these reforms is to exclude trivial claims and to encourage public interest journalism.
In dealing with Ajaka v Nine Network, the editorial notes that there is a 'wrinkle' with some 'technicalities', that Ajaka and his company may seek an injunction based on injurious falsehood. This issue is important but not unknown.
Corporations presumptively cannot sue for defamation in Australia. The purpose of this reform, introduced nationally in 2005-06, was to force corporations to rely on forensically more onerous causes of action like injurious falsehood.
Defamation has many advantages over injurious falsehood, from a plaintiff's perspective. One major advantage injurious falsehood has over defamation is that, in Australia, it is very difficult to get an injunction for defamation but not for injurious falsehood.
This could be solved if Australia, like other jurisdictions, applied the same test for interlocutory injunctions in defamation and injurious falsehood. This issue was not unknown - I have written about it for some time.
Even if that change is not adopted, when dealing with an application for an injunction for injurious falsehood against a publisher, rather than a trade rival, freedom of speech should ordinarily be a significant factor weighing against the grant of the injunction.
In addition, exemplary damages are available for injurious falsehood but not defamation, which would tend to suggest that damages would be an adequate remedy for injurious falsehood.
The editorial touches upon the anti-trolling bill and, although it does not support it, is concerned about overcoming the effect of Voller and suggests that the new Federal Government address the issue.
There is a second stage of reforms to the national, uniform defamation laws underway seeking to address issues affecting internet intermediaries and platforms, as well as reporting sexual assault and harassment. It might be prudent to wait and see what emerges from that process.
The issue of dealing with the effect of the High Court's decision in Voller is complicated. The last government's position on this evolved over the course of the summer, following feedback from experts.
Because publication is the gist of the action in defamation, changes to what constitutes publication and who is a publisher should not be made hastily. If you only tinker with one aspect of defamation law, you may have unintended consequences on other aspects.
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