INCLUDING REAL PEOPLE IN YOUR ART OR TELLING THEIR STORIES? IMPORTANT CHANGES TO DEFAMATION LAW YOU NEED TO KNOW ABOUT.
Creators who represent real people in their work need to consider the risk of potential defamation claims. Defamation is a legal action available where an individual, not-for-profit organisation or a small corporation (with less than 10 employees) claims a communication has been made about them which is false, and capable of harming their reputation.
The law of defamation aims to balance the right of free speech with protecting a person’s reputation against harm. The media tends to be the main target for defamation actions however people have also sued over poems, books, cartoons, paintings, photographs, reviews, songs and works of satire.
Changes to defamation laws were implemented on 1 July 2021 in New South Wales, South Australia, Queensland, and Victoria, with the remaining states and territories expected to adopt the laws soon. The changes to the laws are the result of a national reform project intended to bring Australia’s defamation laws in line with the digital age and to encourage disputes to be resolved before they wind up in court.
So, as a creator, what are the key changes you need to know about?
- Serious Harm – There is now a threshold requirement that the material has caused, or is likely to cause, serious harm to the person who is alleging they have been defamed.
- Defence of Triviality – In light of the above ‘serious harm’ requirement, the defence of triviality has been removed.
- The Single Publication Rule – Parties wanting to make a claim for defamation in relation to material published online will have 12 months to do so from the time it is first uploaded. Prior to the reforms, this 12-month period was considered to reset each day that the material was available online.
- Public Interest Defence – It is now a defence if the publisher can prove that the material concerns a matter of public interest, and the publisher reasonably believed that the publication of the material was also in the public interest.
- Requirement for a Concerns Notice – Before launching any court proceedings, a person who thinks they have been defamed is now first required to provide a ‘concerns notice’ to the person who has published the material. This is essentially a written notice setting out details of the allegedly defamatory material and why it is likely to cause the person serious harm, giving the publisher of the material a chance to respond and potentially remove the material before legal action is taken.
A number of other procedural and technical changes have been made relating to the way defamation proceedings are carried out in court, including to the amount of damages that can be awarded, the process of ‘pleading’ a claim and the defences available.
For more information on these changes and defamation law generally, please see the Defamation Law information sheet here. Alternately, any artists or arts organisations with questions about these changes can seek further advice from Arts Law, via the legal query form on our website here.
Article written by Nell Morgan (Solicitor on Secondment from King & Wood Mallesons) and Roxanne Lorenz (Solicitor, Arts Law)