It's the Vibe: time for states to tackle defamation law reform

When uniform defamation laws were unfurled across the country on January 1, 2006, Twitter didn't even exist and Facebook was in its infancy.

The national laws, replacing an unworkable system of eight different laws across Australia, were modelled on NSW's Defamation Act 1974 – which was the legal equivalent of a house a seller might spruik as a "renovator's delight".

<i>Illustration: Simon Bosch</i>
Illustration: Simon Bosch 

Nary a lick of paint has been applied over the past decade. Australia is lagging behind other countries in considering how the balance between freedom of speech and protection of reputation should be struck in a digital age.

And it is a case alluding to another ramshackle property – the house at the centre of 1997 Australian cult classic The Castle – that has highlighted the need for some renovations to the law. More on that later.

In the best defamation case of 2015, a Queensland solicitor sued for being likened to <em>The Castle's</em> bumbling ...
In the best defamation case of 2015, a Queensland solicitor sued for being likened to The Castle's bumbling suburban lawyer Dennis Denuto. 

First, the reform process has begun, albeit tentatively. An extra section in NSW's version of the Defamation Act required the state government to conduct a review "as soon as possible" after its fifth birthday in January 2011. A report was to be tabled in State Parliament within a year of that milestone.

So, where is the report? The good news is it was completed by the Attorney-General's Department after submissions were sought in early 2011. The bad news is it was some time ago – time enough for a new Attorney-General or two to be installed in the job (thanks to the febrile Law 'N Order debate in NSW, the state's top law officer rarely gets to try on the wig before they're booted out).


It may fall to Gabrielle Upton, who took over the portfolio in April, to revive the debate about defamation law reform.

One change that ought to be considered is the "serious harm" test introduced in the UK Defamation Act 2013, which came into force in January 2014 and is designed to weed out cases that might be regarded as trivial. This could avoid costly lawsuits over tweets and other social media posts that have sprung up in recent years, usually involving comments made by amateur publishers to a tiny number of followers.

"A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant," reads the first section of the UK law. What exactly those words mean has been considered in cases.

There is already a defence of triviality in the uniform laws in Australia, which does something similar, but it operates at a much later stage in the proceedings. The defendant must prove that in the circumstances "the plaintiff was unlikely to sustain any harm".

The triviality defence was considered in easily the best defamation case of 2015, involving a Queensland lawyer suing for $250,000 in damages for being likened to The Castle's bumbling suburban solicitor, Dennis "The Vibe" Denuto.

"It is difficult to conceive of a surer way to denigrate an Australian solicitor than to call him 'Dennis Denuto'," the indignant lawyer said in his submissions to the court about an email to a family member and a couple of conversations.

The words had left him "ropeable" and "furious" and exacerbated his insomnia, he claimed.

Queensland District Court Judge Tony Moynihan said Denuto is portrayed in the film as "likeable and well-intentioned, but inexperienced in matters of constitutional law".

"His submission concerning 'the vibe' is a well-known line from the film," Judge Moynihan said, in the deadpan manner that students of law particularly enjoy.

The judge said that while the words defamed the lawyer, the case should be thrown out because the defence of triviality had been established.

"The statements were confined to two members of his family with whom the defendant was in dispute, and they were able to make their own assessment," Judge Moynihan said.

The lawyer was also ordered to pay thousands in legal costs, after the court found he unreasonably failed to accept an offer of $7,500 plus costs to settle the case. A serious harm test could have avoided the expense and drama of a court hearing and the size of the eventual costs order.

Alternatives to awarding damages also need to be considered in the digital era.

"The legislative failure to consider remedy reforms given the wholly different nature of electronic publication and role of the defendant (especially in social media cases) is as hard to understand as their continued reluctance to confront privacy and breach of confidence issues," wrote District Court defamation list Judge Judith Gibson in a recent book review.

The futility of awarding damages against amateur publishers was highlighted in the first Twitter defamation case to proceed to judgment in NSW. It resulted in a former schoolboy being ordered to pay $105,000 for defaming a teacher on Twitter and Facebook.

Ask any defamation barrister in Sydney and they could dream up another wish list of reforms. Some, such as the re-introduction of a public interest requirement as part of the defence of truth or allowing a broader range of companies to sue, would be strenuously opposed by large media organisations.

Others may be too ambitious. The Law Society suggested hopefully in 2011 that some cases could be dealt with cheaply and more speedily in a new, specialist division of the NSW Administrative Decisions Tribunal.

In any case, it's time for a long-overdue debate to kick off in earnest. It's the vibe.