Australia’s newly amended defamation laws should stop crooks like Lachlan Murdoch and Kerry Stokes from abusing the legal system to silence journalists. The new laws should also protect many social media users from frivolous defamation claims from the likes of federal MP Peter Dutton.

Kerry Stokes is notorious for using defamation law to silence journalists with the current Ben Roberts-Smith defamation case a prime example of which Stokes is financing, Lachlan Murdoch is currently trying to silence the Crikey website and Peter Dutton failed in his defamation case against Shane Bazzi over one message on Twitter.

The key elements that should stop them are a requirement for defamation applicants to prove “as a fact” that serious harm has been caused, or likely to be caused, by the alleged defamation and also the requirement to send a Concerns Notice at least 14 days before they institute legal proceedings.

If those requirements had been in place in 2014 it is almost certain that Kerry Stokes would not have instituted the 3 defamation lawsuits against me which I will discuss further in a minute. I will also discuss some high-profile cases and the impact the new laws would have had on them.

In this article, I will also show how frivolous and vexatious defamation cases can be struck out quickly which is important not just for journalists but also for all social media users as you might also be threatened with defamation when there is no legal basis to do so.

With the new amendments to the Defamation Act 2005 there are not a lot of precedents testing the new amendments but the reason I have “as a fact” in inverted commas in relation to proving “serious harm” is that there is a precedent that finds that. In Newman v Whittington [2022] NSWSC 249 Justice Sacker found in paragraph 69 that “The plaintiff is therefore obliged to prove serious harm as a fact in every case…”.

The below video gives an overview of the article:

The new laws – Amendments to the Defamation Act 2005

The key reforms implemented include:

1. Introduction of a Single Publication Rule, 
2. Requirement for a Concerns Notice; (See sections 12A and 12B – Defamation proceedings cannot be commenced without concerns notice)
3. Serious harm threshold; (See section 10A)
4. New defences for public interest
5. A cap on damages for non-economic loss.

I won’t address all the changes except the requirement for a Concerns Notice and the serious harm threshold that must be proven as a fact. The reason I will focus on these 2 changes to defamation law is that if they do not comply with the law, sections 10A and 12A AND 12B, the matter can be struck out before a final hearing which would greatly reduce the time and costs involved in defending the matter.

Concerns Notice

The law has now been amended to require someone who thinks they have been defamed to provide a ‘concerns notice’ to the person who they believed has published the defamatory material before they can bring defamation proceedings against them in court.

A concerns notice is a written notice that:

• Specifies the location where the allegedly defamatory material can be accessed (e.g. a website address); and
  • Informs the publisher of the defamatory imputations the person believes that the publication contains about them; and
  • Informs the publisher of the ‘serious harm’ that the person considers to have been caused to the person’s reputation as a result of the publication of the allegedly defamatory material; and
  • Attaches a copy of the allegedly defamatory material to the notice. (Click here to read more)

The Plaintiff is required to wait at least 14 days before commencing proceedings after the service of a valid Concerns Notice.

Serious Harm

The defamation reforms have introduced a threshold requirement that the allegedly defamatory matter has caused (or is likely to cause) serious harm to the plaintiff. A person who wishes to take legal action for defamation must be able to prove that they have suffered, or could suffer, ‘serious harm’.

If a corporation is suing for defamation, it needs to prove that it has suffered ‘serious financial loss’ as a result of the publication of the allegedly defamatory matter. As described further below, not all corporations can sue for defamation. (Click here to read more)

Lawyers won’t tell you the law

Defamation lawyers are not motivated to tell you that a defamation claim against you can be easily thrown out if a Concerns Notice or Statement of Claim does not conform and if certain evidence is not produced as they will greatly reduce their own income. Instead of making $100,000 or more if a defamation claim goes to a hearing lawyers would only make $5000 or $10,000 if the matter is thrown out at an early stage.

I raise this as I have had feedback that some lawyers are doing just that and are not giving their clients the right legal advice to have claims dismissed easily because the claims do not conform to the new requirements for Concerns Notices and evidence of serious harm.

If a party does not send a Concerns Notice, with the relevant details outlined above, 14 days before they file a defamation claim against you then you can ask the judge or file an application to have the matter thrown out. An example is if the applicants do not provide any evidence of serious harm, or likely serious harm, in their Concerns Notice then you can also ask the judge to have the matter thrown out as per section 10A (4) (a) and (b)

(4)  Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)

(a)  determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial, and

(b)  make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established). (Click here to see Defamation Act 2005)

Defamation precedents and how the new laws might have affected them

The new laws won’t stop all frivolous and vexatious defamation claims, but they should stop a large percentage of them once people become educated about the new laws. 

Legitimate defamation cases would be able to show serious harm, or likely serious harm, before trial such as the Geoffrey Rush defamation case where he lost work after he was accused of sexually assaulting a female actor.

But it’s worth noting that defamation cases used to hide crimes and/or alleged crimes can also show serious harm such as the Craig McLachlan defamation case where he also lost work after being accused of sexually assaulting a number of women. McLachlan withdrew his defamation claim towards the end of his trial when it became clear he would lose. 

But a case like federal MP Peter Dutton suing Twitter user Shane Bazzi over one Tweet would have never gotten off the ground if Dutton needed to prove serious harm as there clearly was none.

Similarly, I cannot see Lachlan Murdoch being able to prove serious harm regarding an article that said:

“If Trump ends up in the dock for a variety of crimes committed as president, as he should be, not all his co-conspirators will be there with him. Nixon was famously the ‘unindicted co-conspirator’ in Watergate. The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”

Lachlan Murdoch and his father Rupert receive comments 10,000 times per day on social media that are 100 times worse than that. There is no serious harm and Lachlan’s frivolous claim should be thrown out, but some dodgy judge somewhere might find there is. So, we’ll wait and see. 

Not wanting to send a Concerns Notice might stop some defamation matters

Kerry Stokes instituted 3 defamation claims against me starting in 2014 and I have no doubt that all 3 matters would not have gotten off the ground if he had been forced to file a Concerns Notice, let alone having to prove “as a fact” serious harm.

In Munsie v Dowling, which was Kerry Stokes and his lawyer Justine Munsie suing me, and later his son Ryan Stokes joined the matter, they never sent me a Concerns Notice and went to court ex parte (a secret hearing) and even told the judge if they did not get a super-injunction (so I couldn’t tell anyone there was a court case) they would not institute the matter. So, Justice Ian Harrison gave them a super-injunction.

Under today’s laws where an application has to serve a Concerns Notice 14 days before the matter can be filed in court, which I would have published straight away, Stokes would have never proceeded with the Munsie v Dowling matter.

If you do get threatened with defamation it would be worth coming back, reviewing this article, and clicking on the links to educate yourself about your rights. As the new defamation laws evolve in Australia I’ll follow up with more articles.

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