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Review of Model Defamation Provisions

The Law Council welcomes the opportunity to make a submission regarding the issues raised in the Council of Attorneys-General Review of Model Defamation Provisions Discussion Paper (Discussion Paper).

The Model Defamation Provisions seek to appropriately balance the right of individuals to protect their reputations and the right to freedom of speech, while providing a mechanism whereby the courts can justly, expediently and inexpensively determine the truth or falsity of alleged defamatory matters. 

The Law Council considers that each of the objectives of the Model Defamation Provisions remains valid. However, the Law Council strongly supports reform of the Model Defamation Provisions. To further ensure that the objectives of the Provisions are met, consideration should be given to amendments to the effect that it be mandatory for a judge, at the first directions hearing or case management conference, to specifically address the objects in each of sub-clauses 3(b)-(d), and how the proceeding fits within the parameters of those objects, before deciding whether, and if so how, a proceeding is to continue further.

The Law Council notes that the concept of defamation does not neatly apply in regard to artificial persons (i.e. corporations) and that corporations – particularly large, forprofit organisations – have other available avenues (legal and non-legal) to address what may be perceived as reputational harm. The current provision, clause 9, prevents strategic litigation by large corporations with significant resources to deter adverse publicity, while providing smaller corporations, which may be disproportionately affected by harm to their reputation, access to the defamation regime. The Law Council does not recommend that the right of corporations to sue for defamation be broadened. However, the Law Council submits that clause 9(2)(b) could be amended to better reflect modern business practice, by clarifying that the persons to be counted as ‘employees’ include individuals engaged in the day to day operations of the corporation and subject to its direction and control (for example, contractors and persons supplied by labour hire firms).

You can read the full submission below.

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