Defamation Act 2005

Defamation Act 2005

This Act may be cited as the Defamation Act 2005.

This Act commences on a day to be proclaimed.

The objects of this Act are –

to enact provisions to promote uniform laws of defamation in Australia; and 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 to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.

In this Act, unless the contrary intention appears –

access prevention step, in relation to the publication of digital matter, means a step – to remove the matter; or 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 State; or a Territory; or 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– see section 10B;

concerns notice is defined by section 12A;

conduit service– see section 10B;

country includes – a federation and a state, territory, province or other part of a federation; and an Australian jurisdiction;

court means – the Supreme Court; or the Magistrates Court;

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;

digital matter means matter published in electronic form by means of an online service;

document means any record of information, and includes – anything on which there is writing; and anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and 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 – an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; and a letter, note or other writing; and a picture, gesture or oral utterance; and 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 – to access or connect to the internet; or to use the internet to do one or more of the following:send or receive content; store content; index content; search for content; share content; interact with other persons;

Parliamentary body means – a parliament or legislature of any country; or a house of parliament or legislature of any country; or a committee of a parliament or legislature of any country; or 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 one or more other persons;

search engine– see section 10B;

search engine provider– see section 10B;

search result– see section 10B;

storage service– see 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 Tasmania.

An example or note at the foot of a provision forms part of this Act.

An example in this Act – is not exhaustive; and may extend, but not limit, the meaning of the provision to which it relates.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

This Act relates to the tort of defamation at general law.

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).

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.

The distinction at general law between slander and libel remains abolished.

Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

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.

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.

A corporation is an excluded corporation if – the objects for which it is formed do not include obtaining financial gain for its members or corporators; or it has fewer than 10 employees and is not an associated entity of another corporation – and the corporation is not a public body.

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.

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.

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 – engaged in the day to day operations of the corporation other than as a volunteer; and 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.

A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to – the publication of defamatory matter about a deceased person (whether published before or after that person’s death); or the publication of defamatory matter by a person who has died since publishing the matter.

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.