Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1177/0067205X221086671 |
| Subject Matter | IN FOCUS: DEFAMATION LAW |
In Focus: Defamation law
Federal Law Review
2022, Vol. 50(2) 221–248
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X221086671
journals.sagepub.com/home/flr
Taming the ‘Chilling Effect’of
Defamation Law: English Experience
and Implications for Australia
Jelena Gligorijevic*
Abstract
The ‘chilling effect’of defamation law has driven legislative action narrowing this tort’s scope and
operation. As substantial reforms come into effect across Australia, this article provi des a detailed
analysis of how defamation law in the United Kingdom has developed since similarly narrowing
reforms took effect there almost a decade ago, and the implications this will have for Australia. Two
important aspects of reform in both jurisdictions are the serious harm threshold and the public interest
defence. Both are targeted at narrowing the tort and taming its ‘chilling effect’. Although both of these
two changes have definitively narrowed the tort in the United Kingdom, neither of them has revo-
lutionised this tort nor abolished its core purpose to protect reputation against false imputations. Given
the consistency in legislative purpose and framing of the new provisions as between the two juris-
dictions, Australian courts should, consistently with their English counterparts, exercise caution when
interpreting the new threshold and the new defence, to ensure they do not tread too far from the
deeper principles underpinning the tort, even in its narrower, tamer form.
Received 22 July 2021
Introduction
The ‘chilling effect’of defamation law has been a significant driver behind legislative action
intended to narrow this tort’s scope and operation. As substantial reforms come into effect across
Australia, it bears assessing how defamation law in the United Kingdom has developed since
similarly narrowing reforms took effect there almost a decade ago. The first tranche of reforms to
Australia’s Model Defamation Provisions draws upon two important aspects of the United
Kingdom’s reformed law: theserious harm threshold and the public interest defence. Both are targeted at
narrowing the tort and taming its ‘chilling effect’. This article analyses in detail how each of these two
changes has narrowed the tort in the United Kingdom and the implications this will have for Australia.
Although both the serious harm threshold and the public interest defence have definitively
narrowed the tort in the United Kingdom, neither of these two changes has revolutionised this tort
*ANU College of Law. This paper was presented at the ANU Defamation Law Conference in July 2021. I am grateful to the
participants and attendees for their illuminating comments, as well as to the two anonymous reviewers for their valuable
comments and suggestions. Any errors remain my own. The author may be contacted at jelena.gligorijevic@anu.edu.au.
nor abolished its core purpose of protecting individuals’reputation against false imputations. The
English and Welsh courts have interpreted these two major changes to the tort in an importantly
measured way and in keeping with legislative purpose, so that, even though its ‘chilling effect’may
be reduced, defamation law remains an essential protective device for dignitary-reputational in-
terests. Given the consistency in legislative purpose and framing of the new provisions as between
the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise
caution when interpreting the new provisions, to ensure they do not tread too far from the deeper
common law principles that should continue to underpin the tort, even in its narrower form.
The Current State of Reform in Australia
Following 18 months of review and public consultation by the New South Wales-led Defamation
Working Party (‘DWG’),
1
the former Australian Council of Attorneys-General (‘CAG’) approved
amendments to Australia’s Model Defamation Provisions (‘MDPs’) in July 2020.
2
These Model
Defamation Amendment Provisions (‘MDAPs’) form the first tranche of Australian defamation
reform, resulting from stage 1 of the Review of the MDPs; the DWP is currently undertaking stage
2.
3
As Australian defamation law is governed in each State and Territory by the common law as well
as statute, and statutory defamation law in each jurisdiction has been consistent with the MDPs since
they were agreed in 2004,
4
the MDAPs must be passed into law in each State and Territory to
become effective. The Attorney-General agreed in March 2021 that the MDAPs will come into
effect on 1 July 2021 in New South Wales, Victoria, and South Australia, and that all other States
and Territories will pass the MDAPs into law on that date or as soon as possible thereafter.
5
The MDAPs amend several areas of Australian defamation law, and in some respects, draw upon
the English reforms, which took effect in 2014.
6
In particular, the MDAPs incorporate two major
aspects of the reformed English law: the serious harm threshold and the public interest defence.
Each of these changes will be analysed in greater detail in parts III and IV, including both how they
1. All Australian States and Territories are signatories to the MDP Intergovernmental Agreement, which established the
DWP to report to Attorneys-General on proposals to amend the MDPs.
2. Australasian Parliamentary Counsel Committee, Model Defamation Amendment Provisions 2020 (at 27 July 2020)
(‘MDAPs’).
3. Council of Attorneys General, ‘Review of the Model Defamation Provisions –Stage 2’(Discussion Paper, 31 March
2021) (‘Stage 2 Discussion Paper’). This tranche of reform concerns internet intermediary liability for third-party content
and extending the absolute privilege defence in certain circumstances. Submissions closed on 19 May 2021, and can be
viewed here: NSW Communities & Justice, ‘Submissions to the Review of Model Defamation Provisions –Stage 2’,
Public Consultation (Web Page) https://www.justice.nsw.gov.au/justicepolicy/Pages/lpclrd/lpclrd_consultation/
submissions-to-the-review-of-model-defamation-provisions-stage-2.aspx.
4. There is substantive consistency, though legislation is not necessarily identical, across the jurisdictions: Civil Law
(Wrongs) Act 2002 (ACT); Defamation Act 2006 (NT); Defamation Act 2005 (NSW); Defamation Act 2005 (Qld);
Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA).
5. Defamation Amendment Bill 2020 (NSW); Legislation Amendment (Supporting Victims and Other Matters) Act 2020
(Vic);Defamation (Miscellaneous) Amendment Act 2020(SA); and Defamation (Model Provisions) and Other Legislation
Amendment Act 2021 (Qld). Consultation on the draft Defamation Amendment Bill 2021 (Tas) closes 2 July 2021. The
Australian Capital Territory,the Northern Territory, and Western Australiahave not yet produced draft Bills covering the
MDAPs.
6. Defamation Act 2013 (UK). Note the Defamation Act 2013 (UK) extends to England and Wales only, except for certain
provisions which also extend to Scotland (but not Northern Ireland): s 17. This article will refer to the DefamationAct 2013
(UK),and related doctrine, interchangeably as ‘English law’and ‘law of the United Kingdom’, and, for brevity, to the
relevant courts as ‘English courts’. As to how the MDAPs draw upon the Defamation Act 2013 (UK), see the Explanatory
note at 4, 9, 10.
222 Federal Law Review 50(2)
To continue reading
Request your trial