New South Wales: Defamation Act 2005 (NSW)

Defamation Act 2005 No 77 An Act to enact in New South Wales provisions to promote uniform laws of defamation in Australia; to repeal the Defamation Act 1974; to amend the Crimes Act 1900 in relation to criminal defamation; to amend the Limitation Act 1969 in relation to the limitation period for defamation actions; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Defamation Act 2005. 2 Commencement This Act commences on 1 January 2006. 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 Definitions In this Act— access prevention step, in relation to the publication of digital matter, means a step— (a) to remove the matter, or (b) to block, disable or otherwise prevent access, whether by some or all persons, to the matter. 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). caching service is defined for Part 2, Division 2A by section 10B. concerns notice is defined by section 12A. conduit service is defined for Part 2, Division 2A by section 10B. country includes— (a) a federation and a state, territory, province or other part of a federation, and (b) an Australian jurisdiction. digital intermediary, in relation to the publication of digital matter, means a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published. Note— There may be more than 1 digital intermediary in relation to the publication of the same digital matter. digital matter means matter published in electronic form by means of an online service. 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. Health Practitioner Regulation National Law means— (a) the Health Practitioner Regulation National Law— (i) as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, and (ii) as it applies (including with any modifications) as a law of New South Wales or another State or Territory, or (b) the law of another State or Territory that substantially corresponds to the law referred to in paragraph (a). 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. online service means a service provided to a person, whether or not it is requested or it is for a fee or reward, to enable the person to use the internet, including, without limitation, a service enabling a person— (a) to access or connect to the internet, or (b) to use the internet to do 1 or more of the following— (i) send or receive content, (ii) store content, (iii) index content, (iv) search for content, (v) share content, (vi) interact with other persons. Examples of an online service— 1 An internet-based social media platform. 2 A forum created or administered by a person using a facility provided by an internet-based social media platform that enables users to share content or interact with other users about a topic. 3 A website or other internet-based platform that enables knowledge to be shared by or with its users. parliamentary body means— (a) a parliament or legislature of any country, or (b) a house of a 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. poster, in relation to the publication of digital matter, means a person who uses the online service by means of which the matter is published for the purpose of communicating the matter to 1 or more other persons. search engine is defined for Part 2, Division 2A by section 10B. search engine provider is defined for Part 2, Division 2A by section 10B. search result is defined for Part 2, Division 2A by section 10B. storage service is defined for Part 2, Division 2A by section 10B. 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 New South Wales. 4A Examples and notes (1) An example or note at the foot of a provision forms part of this Act. (2) An example in this Act— (a) is not exhaustive, and (b) may extend, but does not limit, the meaning of the provision to which it relates. 5 Act to bind Crown This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown 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 following legislation had never been enacted— (a) the Defamation Act 1958, (b) the Defamation Act 1974. 7 Distinction between slander and libel abolished (1) The distinction at general law between slander and libel is 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) (Repealed) (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 his or her 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 2A Exemptions from liability for digital intermediaries 10B Definitions In this division— caching service means an online service whose principal function is to provide automatic, intermediate and temporary storage of content for the purpose of making the onward electronic transmission of the content more efficient for its users. Example of a caching service— A service for temporarily and automatically storing files that are most frequently downloaded by users of a website to speed up the download time for the files. conduit service means an online service whose principal function is to enable its users to access or use networks or other infrastructure to connect to, or send or receive data by means of, the internet. Examples of a conduit service— 1 A service provided by an internet service provider enabling its users to connect to the internet. 2 An internet-based service enabling its users to send emails or send text messages to other persons. search engine means a software application or system designed to enable its users to search for content on the internet. search engine provider for a search engine means a person who maintains, or provides users with access to the search functions of, the search engine. search result means a result generated by a search engine that is limited to identifying a webpage on which content is located by reference to 1 or more of the following— (a) the title of the webpage, (b) a hyperlink to the webpage, (c) an extract from the webpage, (d) an image from the webpage. storage service means an online service, other than a caching service, whose principal function is to enable its users to store content remotely. Example of a storage service— An internet-based cloud service enabling its users to store documents, videos or photographs for later retrieval. 10C Exemption for digital intermediaries providing caching, conduit or storage services (1) A digital intermediary is not liable for defamation for the publication of digital matter if the intermediary proves— (a) the matter was published using 1 or more of the following services provided by the intermediary— (i) a caching service, (ii) a conduit service, (iii) a storage service, and (b) the intermediary's role in the publication was limited to providing 1 or more of the services mentioned in paragraph (a), and (c) the intermediary did not do any of the following— (i) initiate the steps required to publish the matter, (ii) select any of the recipients of the matter, (iii) encourage the poster of the matter to publish the matter, (iv) edit the content of the matter, whether before or after it was published, (v) promote the matter, whether before or after it was published. (2) Subsection (1)(c) does not apply in relation to action taken because it is required by or under a law of an Australian jurisdiction or an order of an Australian court or Australian tribunal. Example— Action taken to comply with a code of conduct or other document regulating conduct that a digital intermediary is required to comply with by a law of an Australian jurisdiction. (3) Subsection (1) applies regardless of whether the digital intermediary knew, or ought reasonably to have known, the digital matter was defamatory. 10D Exemption for search engine providers (1) A search engine provider for a search engine is not liable for defamation for— (a) the publication of digital matter comprised of search results if the provider's role was limited to providing an automated process for the user of the search engine to generate the results, or (b) the publication of digital matter to which the search results provide a hyperlink if the provider's role in the publication of the matter is limited to the role mentioned in paragraph (a). (2) Subsection (1) does not apply in relation to search results, or to digital matter to which the search results provide hyperlinks, to the extent the results are promoted or prioritised by the search engine provider because of a payment or other benefit given to the provider by or on behalf of a third party. (3) Subsection (1) applies regardless of whether the search engine provider knew, or ought reasonably to have known, the digital matter was defamatory. 10E Early determination of digital intermediary exemptions (1) The judicial officer in defamation proceedings— (a) is to determine whether a defendant has a digital intermediary exemption, and (b) is to determine whether a digital intermediary exemption is established as soon as practicable before the trial for the proceedings commences unless satisfied that there are good reasons to postpone the determination to a later stage of the proceedings, and (c) may make any orders the judicial officer considers appropriate concerning the determination of the issue, including dismissing the proceedings if satisfied the digital intermediary exemption is established. (2) Without limiting subsection (1)— (a) the following matters are relevant in deciding whether there are good reasons to postpone the determination of whether a digital intermediary exemption is established to a later stage of the proceedings— (i) the cost implications for the parties, (ii) the resources available to the court at the time, (iii) the extent to which technical or scientific issues are raised in the proceedings, (iv) the extent to which establishing the digital intermediary exemption is linked to other issues for determination during the trial for the proceedings, and (b) the judicial officer may determine a digital intermediary exemption is established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are sufficient to establish the exemption. (3) 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 for the proceedings commences. (4) In this section— digital intermediary exemption means an exemption from liability for defamation mentioned in section 10C or 10D. 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 purpose 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 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. Note. Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced. (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 for the purposes of 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— (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 means the Limitation Act 1969. 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) (Repealed) 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 (b1) 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) (Repealed) (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 is digital matter—an offer to take access prevention steps in relation to the matter, 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. (1B) If the matter in question is digital matter, an offer to take access prevention steps may be made instead of, or in addition to, either or both of the offers mentioned in subsection (1)(d) and (e). (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 21 Election for defamation proceedings to be tried by jury (1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury. (1A) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if— (a) the trial requires a prolonged examination of records, or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury. (2) An election must be— (a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and (b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court. (3) An election may be revoked only— (a) with the consent of all the parties to the proceedings, or (b) if all the parties do not consent, with the leave of the court. (4) The court may, on the application of a party to the proceedings, grant leave for the purposes of subsection (3)(b) only if satisfied it is in the interests of justice for the election to be revoked. 22 Roles of judicial officers and juries in defamation proceedings (1) This section applies to defamation proceedings that are tried by jury. (2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. (3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise. (5) Nothing in this section— (a) affects any law or practice relating to special verdicts, or (b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer, or (c) requires or permits a jury to determine any issue that another provision of this Act requires a judicial officer to determine. 23 Leave required for multiple proceedings in relation to publication of same defamatory matter (1) This section applies to a person who has brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter. (2) The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought. (3) A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceedings related, the person was— (a) an employee of the defendant, or (b) a person publishing matter as a contractor of the defendant, or (c) an associated entity of the defendant (or an employee or contractor of the associated entity). 23A Orders for preliminary discovery about posters of digital matter (1) This section applies if the court procedure law for a court allows a person seeking to bring defamation proceedings for the publication of digital matter to obtain an order for, or in the nature of, preliminary discovery for either or both of the following purposes— (a) to obtain information to assist in identifying the posters of the matter, (b) to obtain information to assist in locating physical or digital addresses for the posters of the matter to allow concerns notices to be given to them or defamation proceedings against them to be commenced. (2) Despite anything to the contrary in the court procedure law for a court, the court must take the following matters into account before making an order mentioned in subsection (1)— (a) the objects of this Act, (b) privacy, safety or other public interest considerations that may arise if the order is made. Example for paragraph (b)— Evidence suggesting the poster of digital matter is in fear of domestic violence from the person seeking an order to obtain the poster's address. (3) This section does not limit the matters the court may take into account before making an order mentioned in subsection (1). (4) In this section— court procedure law for a court means— (a) rules of court for the court, or (b) an Act or other legislation that regulates the practice or procedure of the court, or (c) the general law concerning the inherent or implied jurisdiction or powers of the court. Division 2 Defences 24 Scope of defences under general law and other law not limited (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability. (2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice. 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 26 Defence of contextual truth (1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter carried one or more imputations that are substantially true (contextual imputations), and (b) any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. (2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains. 27 Defence of absolute privilege (1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if— (a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)— (i) the publication of a document by order, or under the authority, of the body, and (ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and (iii) the publication of matter while giving evidence before the body, and (iv) the publication of matter while presenting or submitting a document to the body, or (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)— (i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and (ii) the publication of matter while giving evidence before the court or tribunal, and (iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or (b1) the matter is published to a person who, at the time of the publication, is an official of a police force or service of an Australian jurisdiction and it is published to the official while the official is acting in an official capacity, or (c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or (d) the matter is published by a person or body in any circumstances specified in Schedule 1. (3) In this section— official of a police force or service of an Australian jurisdiction means— (a) an officer, employee or member of staff of the police force or service, or (b) another person engaged to act for or on behalf of the police force or service. 28 Defence for publication of public documents (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in— (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document. (2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about— (a) the formal requirements for the content or layout of the report or document, or (b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body, the report or document is a public document despite that non-compliance. (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section, public document means— (a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or (b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including— (i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and (ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or (c) any report or other document that under the law of any country— (i) is authorised to be published, or (ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or (d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or (e) any record or other document open to inspection by the public that is kept— (i) by an Australian jurisdiction, or (ii) by a statutory authority of an Australian jurisdiction, or (iii) by an Australian court, or (iv) under legislation of an Australian jurisdiction, or (f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or (g) any document of a kind specified in Schedule 2. 29 Defences of fair report of proceedings of public concern (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section, proceedings of public concern means— (a) any proceedings in public of a parliamentary body, or (b) any proceedings in public of an international organisation of any countries or of the governments of any countries, or (c) any proceedings in public of an international conference at which the governments of any countries are represented, or (d) any proceedings in public of— (i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations, or (ii) any other international judicial or arbitral tribunal, or (e) any proceedings in public of a court or arbitral tribunal of any country, or (f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country, or (g) any proceedings in public of a local government body of any Australian jurisdiction, or (h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about— (i) a member or members of the society, or (ii) a person subject by contract or otherwise by law to control by the society, or (i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about— (i) a member or members of the association, or (ii) a person subject by contract or otherwise by law to control by the association, or (j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about— (i) a member or members of the association, or (ii) a person subject by contract or otherwise by law to control by the association, or (k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia, or (l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office, or (m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman, or (n) any proceedings in public of a law reform body of any country, or (o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section, or (p) any proceedings of a kind specified in Schedule 3. (5) In this section— law reform body of a country means a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country. learned society means a body, wherever formed— (a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field, and (b) authorised by its constitution— (i) to exercise control over, or adjudicate on, matters connected with those objects, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. ombudsman of a country means a person (however described and whether or not permanent or full-time) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country. relevant objects of a learned society, sport or recreation association or trade association means— (a) in relation to a learned society—objects of the kind referred to in paragraph (a) of the definition of learned society in this subsection, or (b) in relation to a sport or recreation association—objects of the kind referred to in paragraph (a) of the definition of sport or recreation association in this subsection, or (c) in relation to a trade association—objects of the kind referred to in paragraph (a) of the definition of trade association in this subsection. sport or recreation association means a body, wherever formed— (a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime, and (b) authorised by its constitution— (i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. trade association means a body, wherever formed— (a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling, and (b) authorised by its constitution— (i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. 29A Defence of publication of matter concerning issue of public interest (1) It is a defence to the publication of defamatory matter if the defendant proves that— (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. (2) In determining whether the defence is established, a court must take into account all of the circumstances of the case. (3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances— (a) the seriousness of any defamatory imputation carried by the matter published, (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (c) the extent to which the matter published relates to the performance of the public functions or activities of the person, (d) whether it was in the public interest in the circumstances for the matter to be published expeditiously, (e) the sources of the information in the matter published, including the integrity of the sources, (f) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person's identity to be kept confidential (including, for example, to comply with an applicable professional code or standard), (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published, (i) the importance of freedom of expression in the discussion of issues of public interest. (4) Subsection (3) does not— (a) require each factor referred to in the subsection to be taken into account, or (b) limit the matters that the court may take into account. (5) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established. 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that— (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account the following factors to the extent the court considers them applicable in the circumstances— (a) the seriousness of any defamatory imputation carried by the matter published, (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (c) the nature of the business environment in which the defendant operates, (d) whether it was appropriate in the circumstances for the matter to be published expeditiously, (e) any other steps taken to verify the information in the matter published. (3A) Subsection (3) does not— (a) require each factor referred to in the subsection to be taken into account, or (b) limit the matters that the court may take into account. (3B) It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1). (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward. (6) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established. 30A Defence of scientific or academic peer review (1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was published in a scientific or academic journal (whether published in electronic form or otherwise), and (b) the matter relates to a scientific or academic issue, and (c) an independent review of the matter's scientific or academic merit was carried out before the matter was published in the journal by— (i) the editor of the journal if the editor has expertise in the scientific or academic issue concerned, or (ii) one or more persons with expertise in the scientific or academic issue concerned. (2) If there is a defence to the publication of defamatory matter in a scientific or academic journal because of subsection (1), there is also a defence to the publication of any assessment of the matter in the same journal if the defendant proves that— (a) the assessment was written by one or more of the persons who carried out the independent review of the matter, and (b) the assessment was written in the course of that review. (3) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a fair summary of, or fair extract from, a matter or assessment for which there is a defence because of subsection (1) or (2). (4) If a journal has more than one editor, a reference in this section to the editor of the journal is to be read as a reference to the editor or editors who were responsible for deciding to publish the matter concerned. (5) A defence established under this section is defeated if, and only if, the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education. 31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper m