Defamation Act 2005 (Tas)

Defamation Act 2005 An Act to modify the general law relating to the tort of defamation, to repeal the Defamation Act 1957 , to amend the Justices Act 1959 and the Criminal Code Act 1924 and for other purposes [Royal Assent 9 December 2005] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Defamation Act 2005 . 2. Commencement This Act commences on a day to be proclaimed. 3. Objects of Act The objects of this Act are – (a) to enact provisions to promote uniform laws of defamation in Australia; and (b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and (c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and (d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. 4. Interpretation In this Act, unless the contrary intention appears – applicable period for an offer to make amends is defined by section 14 ; associated entity has the same meaning as in section 50AAA of the Corporations Act 2001 of the Commonwealth; Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence); Australian jurisdiction means – (a) a State; or (b) a Territory; or (c) the Commonwealth; Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry); concerns notice is defined by section 12A ; country includes – (a) a federation and a state, territory, province or other part of a federation; and (b) an Australian jurisdiction; court means – (a) the Supreme Court; or (b) the Magistrates Court; document means any record of information, and includes – (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph; electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both; excluded corporation means an excluded corporation referred to in section 9 ; further particulars notice means a further particulars notice referred to in section 12A(3) ; general law means the common law and equity; matter includes – (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and (b) a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; and (c) a letter, note or other writing; and (d) a picture, gesture or oral utterance; and (e) any other thing by means of which something may be communicated to a person; offer to make amends means an offer to make amends under Division 1 of Part 3 ; Parliamentary body means – (a) a parliament or legislature of any country; or (b) a house of parliament or legislature of any country; or (c) a committee of a parliament or legislature of any country; or (d) a committee of a house or houses of a parliament or legislature of any country; substantially true means true in substance or not materially different from the truth; Territory means the Australian Capital Territory or the Northern Territory; this jurisdiction means Tasmania. 5. Act to bind Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - General principles Division 1 - Defamation and the general law 6. Tort of defamation (1) This Act relates to the tort of defamation at general law. (2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication). (3) Without limiting subsection (2) , the general law as it is from time to time applies for the purposes of this Act as if the Defamation Act 1957 had never been enacted. 7. Distinction between slander and libel abolished (1) The distinction at general law between slander and libel remains abolished. (2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage. Division 2 - Causes of action for defamation 8. Single cause of action for multiple defamatory imputations in same matter A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. 9. Certain corporations do not have cause of action for defamation (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if – (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or (b) it has fewer than 10 employees and is not an associated entity of another corporation – and the corporation is not a public body. (3) In counting employees for the purposes of subsection (2)(b) , part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent. (4) . . . . . . . . (5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation. (6) In this section – corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body; employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is – (a) engaged in the day to day operations of the corporation other than as a volunteer; and (b) subject to the control and direction of the corporation; public body means a local government body or other governmental or public authority constituted by or under a law of any country. 10. No cause of action for defamation of, or against, deceased persons (1) A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to – (a) the publication of defamatory matter about a deceased person (whether published before or after that person's death); or (b) the publication of defamatory matter by a person who has died since publishing the matter. (2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection. 10A. Serious harm element of cause of action for defamation (1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. (2) For the purposes of subsection (1) , harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss. (3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established. (4) Without limiting subsection (3) , the judicial officer may (whether on the application of a party or on the judicial officer's own motion) – (a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and (b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established). (5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial). (6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following: (a) the cost implications for the parties; (b) the resources available to the court at the time; (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings. (7) Without limiting subsection (5) , the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element. (8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences). Division 3 - Choice of law 11. Choice of law for defamation proceedings (1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication. (2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication. (3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account – (a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and (b) the extent of publication in each relevant Australian jurisdictional area; and (c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and (d) any other matter that the court considers relevant. (4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section. (5) In this section – Australian jurisdictional area means – (a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c) ; or (b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c) ; or (c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence; geographical area of Australia includes – (a) the territorial sea of Australia; and (b) the external Territories of the Commonwealth; multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons. PART 3 - Resolution of civil disputes without litigation Division 1 - Concerns notices and offers to make amends 12. Application of Division (1) This Division applies if a person (the "publisher") publishes matter (the "matter in question") that is, or may be, defamatory of another person (the "aggrieved person"). (2) The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise. (3) Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division. 12A. Concerns notices (1) For the purposes of this Act, a notice is a concerns notice if – (a) the notice – (i) is in writing; and (ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and (iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern); and (iv) informs the publisher of the harm that the aggrieved person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question; and (v) for an aggrieved person that is an excluded corporation – also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and (b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice. (2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice. (3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v) , the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned. (4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice. (5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice under this section. 12B. Defamation proceedings cannot be commenced without concerns notice (1) An aggrieved person cannot commence defamation proceedings unless – (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned; and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on – (a) some, but not all, of the imputations particularised in a concerns notice; or (b) imputations that are substantially the same as those particularised in a concerns notice. (3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c) , but only if the proposed plaintiff satisfies the court that – (a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or (b) it is just and reasonable to grant leave. (4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period. (5) In this section – limitation law, in relation to proceedings, means the provisions of Tasmanian law that apply in respect of the limitation periods in relation to the proceedings. 13. Publisher may make offer to make amends (1) The publisher may make an offer to make amends to the aggrieved person. (2) The offer may be – (a) in relation to the matter in question generally; or (b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries. (3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others. (4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise. 14. When offer to make amends may be made (1) An offer to make amends cannot be made if – (a) the applicable period for an offer to make amends has expired; or (b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question. (2) For the purposes of this Act, the applicable period for an offer to make amends is – (a) if the aggrieved person has provided further particulars in response to a further particulars notice about a concerns notice after 14 days have elapsed since the concerns notice was given – 14 days since the publisher was given the further particulars; or (b) in any other case – 28 days since the publisher was given a concerns notice by the aggrieved person. (3) If a publisher gives more than one further particulars notice, subsection (2)(a) applies only in respect of the first notice. (4) . . . . . . . . (5) . . . . . . . . 15. Content of offer to make amends (1) An offer to make amends – (a) must be in writing; and (b) must be readily identifiable as an offer to make amends under this Division; and (ba) must provide for the offer to be open for acceptance for at least 28 days commencing on the day the offer is made; and (c) if the offer is limited to any particular defamatory imputations, must state that the offer is so limited and particularise the imputations to which the offer is limited; and (d) must include an offer to publish, or join in publishing, a reasonable correction of, or a clarification of or additional information about, the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and (e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge, must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and (f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer. (g) . . . . . . . . (1A) In addition to the matters referred to in subsection (1) , an offer to make amends may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to) – (a) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; or (b) if the matter has been published on a website or any other electronically accessible location – an offer to remove the matter from the website or location; or (c) an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or (d) the particulars of any correction or apology made, or action taken, before the date of the offer. (2) Without limiting subsection (1A)(c) , an offer to pay compensation may comprise or include any one or more of the following: (a) an offer to pay a stated amount; (b) an offer to pay an amount to be agreed between the publisher and the aggrieved person; (c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person; (d) an offer to pay an amount determined by a court. (3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine – (a) if the offer provides for a court to determine the amount of compensation payable under the offer, the amount of compensation to be paid under the offer; and (b) any other question that arises about what must be done to carry out the terms of the offer. (4) The powers conferred on a court by subsection (3) are exercisable – (a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and (b) except as provided in paragraph (a) , by the Supreme Court. 16. Withdrawal of offer to make amends (1) An offer to make amends may be withdrawn before it is accepted, by notice in writing given to the aggrieved person. (2) A publisher who has withdrawn an offer to make amends may make a renewed offer. (3) A renewed offer may (but need not) be in the same terms as the withdrawn offer. (4) A renewed offer is to be treated as a new offer (including for the purposes of section 14 ). (5) However, the time limit specified in section 14 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if – (a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer; and (b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person. 17. Effect of acceptance of offer to make amends (1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations. (2) A court may (but need not) – (a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer; and (b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis. (3) The powers conferred on a court by subsection (2) are exercisable – (a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and (b) except as provided in paragraph (a) , by the Supreme Court. 18. Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if – (a) the publisher made the offer as soon as reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends); and (b) the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and (c) in all the circumstances the offer was reasonable. (2) In determining whether an offer to make amends is reasonable, a court – (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account – (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and (b) may have regard to – (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and (ii) any other matter that the court considers relevant. (3) Despite section 22(2) , the judicial officer (and not the jury) in defamation proceedings tried by jury is to determine whether a defence under this section is established. 19. Inadmissibility of evidence of certain statements and admissions (1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil). (2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine – (a) any issue arising under, or relating to the application of, a provision of this Division; or (b) costs in defamation proceedings. Division 2 - Apologies 20. Effect of apology on liability for defamation (1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person – (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and (b) is not relevant to the determination of fault or liability in connection with that matter. (2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. (3) Nothing in this section limits the operation of section 38 . PART 4 - Litigation of civil disputes Division 1 - General 20A. Proceedings generally to be commenced within one year (1) Notwithstanding anything contained in any other Act, an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of. (2) The limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires. (3) The limitation period referred to in subsection (1) is extended for an additional period of 56 days, minus any days remaining after the notice day until the limitation period was to expire under subsection (1) . (4) In this section – date of the publication, in relation to the publication of a matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient. 20AB. Single publication rule (1) This section applies if – (a) a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and (b) the first publisher, or an associate of the first publisher, subsequently publishes (whether or not to the public) matter that is substantially the same. (2) Any cause of action for defamation against the first publisher, or an associate of the first publisher, in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when – (a) the limitation period applicable under section 20A begins; or (b) the extended limitation period referred to in section 20AC(2) begins. (3) Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication. (4) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to) – (a) the level of prominence that a matter is given; and (b) the extent of the subsequent publication. (5) For the avoidance of doubt, this section does not limit the power of a court under section 20AC to extend the limitation period applicable under section 20A . (6) In this section – associate of a first publisher means – (a) an employee of the publisher; or (b) a person publishing matter as a contractor of the publisher; or (c) an associated entity (within the meaning of section 50AAA of the Corporations Act 2001 of the Commonwealth) of the publisher (or an employee or contractor of the associated entity); date of the first publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient; public includes a section of the public. 20AC. Extension of limitation period (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period applicable under section 20A for the cause of action.