National defamation laws took effect in Australia in 2006, after the states and territories passed mirror legislation with minor local differences. The new regime replaced an unworkable system of eight different defamation laws across the country. Loading Replay Replay video Play video Play video But the laws have failed to keep pace with technological developments and reforms in other jurisdictions, and NSW Attorney-General Mark Speakman spearheaded a national reform process in June last year. "Social media platforms have enabled an explosion in defamation cases, many of them 'backyard' actions based on trivial comments," Mr Speakman said. "NSW courts are overrun with minor claims, so much so that Sydney is now regarded as the defamation capital of the world."

Mr Speakman will take a package of proposed reforms to the Council of Attorneys-General meeting on November 29 and said the laws could be "Parliament ready" by mid 2020. The proposed changes include a "serious harm" threshold, modelled on developments in the UK, which requires a prospective plaintiff to show a statement caused or is likely to cause "serious harm" to their reputation before they can sue. It is designed to weed out trivial claims. Law Council of Australia president Arthur Moses, SC, said the council "strongly supports" reform of national defamation laws and the serious harm test would "fortify courts in bringing to an end defamation claims that have little merit". A new public interest defence, modelled on New Zealand law, would also be introduced to protect "responsible" publications on matters of public interest. In a move that would put downward pressure on damages payouts, the laws would clarify the present cap of $407,500 on damages for non-economic loss in defamation cases applies even when aggravated damages are also awarded.

This is contrary to rulings in a series of Victorian cases, including Rebel Wilson's defamation case against Woman's Day publisher Bauer Media. The proposed laws would also impose a "sliding scale" so damages for non-economic loss reflect the seriousness of the case. Victorian barrister Matt Collins, QC, who acted for Wilson, said the change would "certainly have the effect of stopping those unusual cases where the cap [on damages] has been very dramatically exceeded", including Wilson's case and Oscar winner Geoffrey Rush's case against The Daily Telegraph. Dr Collins said the change, if enacted, was likely to reduce average payouts. He said the proposed public interest defence was "to be welcomed" but its intersection with the existing defence of qualified privilege required careful thought and the current proposal "seems to me to be a sub-optimal legislative choice".

"The danger is that courts will simply define responsible journalism [under the new defence] as narrowly as they have defined reasonable publication for the purposes of the existing defence," Dr Collins said. But he said the "broad thrust of the proposed reforms is to be welcomed". Loading Under NSW's plan, the law would also be changed to stop online publications being treated as a new publication each time they are downloaded. This has meant the one-year time limit on bringing a defamation claim re-started with every click. Under the proposed new law, Mr Speakman said "material would be taken to be published when it is first uploaded". As a trade-off, the courts would have the power in appropriate cases to extend the time limit on bringing a defamation claim over online publications to three years.