When the Defamation Act 2013 was brought in, one of the main objectives of the legislation was to limit the scope for trivial or time-wasting claims to be brought. Section 1 of the Act imposes a test that requires a claimant to demonstrate serious harm, or the likelihood of serious harm, before words complained of will even be regarded as defamatory. For companies, that threshold test is even more stringent, with the definition of "serious harm" being even more narrowly defined as "serious financial loss".
At the same time, the Act took aim at an increasing tendency for claims in relation to online publications to be brought more than a year after the publication was first put online (and therefore ordinarily outside of the period of limitation for defamation claims). This had historically been possible because the law treated every new view of a particular post as being a fresh instance of publication.
In parallel with these legal developments, however, there has been a growing surge of awareness of the ability to take action over online publications. This has caused a significant rise in the number of enquiries about defamation on social media and elsewhere on the internet. Probably 80-90% of the enquiries we receive at Pitmans now have an online element.
In contrast with the Australian experience, and probably for the reasons discussed in the article below, this has not yet been reflected in quite the same dramatic way in the cases that are making it to Court. But that is certainly not to say that it is impossible to take action over online publications, even those made via social media. It is simply becoming more and more important for victims of such defamatory postings to act promptly, and to secure the assistance of advisers with expertise in the gathering of the online information necessary to satisfy the serious harm test. If our experience is anything to go by, there are a number of such cases likely to be appearing on the court landscape in the next year or so.
As such, if Australia is hoping that the introduction of legislation equivalent to the 2013 Act is going to snuff out the growing trend for social media based reputation claims, any such expectation looks, from the British experience, to be highly unrealistic.
A British test that restricts plaintiffs claims to publications that cause serious harm could go far to prevent trivial claims in Australia, he said. Other problems with current laws in Australia included that the one-year limitation period on claims was essentially redundant in a social media sphere because every time an article, tweet or Facebook post was accessed, it was a defined as a new publication.