1Defamation Act 2006

NORTHERN TERRITORY OF AUSTRALIA DEFAMATION ACT 2006 As in force at 11 August 2025 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Objects of Act .................................................................................. 1 3 Definitions ........................................................................................ 1 4 Act binds Crown .............................................................................. 5 Part 2 General principles Division 1 Defamation and the general law 5 Tort of defamation ........................................................................... 5 6 Distinction between slander and libel abolished .............................. 5 Division 2 Causes of action for defamation 7 Single cause of action for multiple defamatory imputations in same matter..................................................................................... 6 8 Certain corporations do not have cause of action for defamation ....................................................................................... 6 9 No cause of action for defamation of, or against, deceased persons ............................................................................................ 7 9A Serious harm element of cause of action for defamation ................. 7 Division 2A Exemptions from liability for digital intermediaries 9B Definitions ........................................................................................ 8 9C Exemption for digital intermediaries providing caching, conduit or storage services .......................................................................... 9 9D Exemption for search engine providers ......................................... 10 9E Early determination of digital intermediary exemptions ................. 11 Division 3 Choice of law 10 Choice of law for defamation proceedings ..................................... 12 Defamation Act 2006 ii Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends 11 Application of Division ................................................................... 13 11A Concerns notices ........................................................................... 14 11B Defamation proceedings cannot be commenced without concerns notice ............................................................................. 15 12 Publisher may make offer to make amends................................... 16 13 When offer to make amends may be made ................................... 16 14 Content of offer to make amends .................................................. 17 15 Withdrawal of offer to make amends ............................................. 18 16 Effect of acceptance of offer to make amends............................... 19 17 Effect of failure to accept reasonable offer to make amends ......... 20 18 Inadmissibility of evidence of certain statements and admissions..................................................................................... 21 Division 2 Apologies 19 Effect of apology on liability for defamation ................................... 21 Part 4 Litigation of civil disputes Division 1 General 20 Leave required for multiple proceedings in relation to publication of same defamatory matter.......................................... 22 20A Orders for preliminary discovery about posters of digital matter .... 22 Division 2 Defences 21 Scope of defences under general law and other law not limited .... 23 22 Defence of justification .................................................................. 23 23 Defence of contextual truth ............................................................ 24 24 Defence of absolute privilege ........................................................ 24 25 Defence for publication of public documents ................................. 25 26 Defences of fair report of proceedings of public concern ............... 27 26A Defence of publication of matter concerning issue of public interest ........................................................................................... 31 27 Defence of qualified privilege for provision of certain information ..................................................................................... 32 27A Defence of scientific or academic peer review............................... 33 28 Defences of honest opinion ........................................................... 34 28A Defence for publications involving digital intermediaries ............... 36 29 Defence of innocent dissemination ................................................ 38 Defamation Act 2006 iii Division 3 Remedies 31 Damages to bear rational relationship to harm .............................. 39 32 Damages for non-economic loss limited ........................................ 39 33 State of mind of defendant generally not relevant to awarding damages ........................................................................................ 40 34 Exemplary or punitive damages cannot be awarded ..................... 40 35 Factors in mitigation of damages ................................................... 40 36 Damages for multiple causes of action may be assessed as single sum ..................................................................................... 41 36A Orders against non-party digital intermediaries concerning defamatory digital matter ............................................................... 41 Division 4 Costs 37 Costs in defamation proceedings .................................................. 42 Part 5 Miscellaneous matters 38 Proof of publication ........................................................................ 43 39 Proof of convictions for offences.................................................... 44 40 Incriminating answers, documents or things .................................. 44 41 Giving of notices and other documents ......................................... 45 42 Regulations.................................................................................... 46 Part 6 Repeals and transitional matters for Defamation Act 2006 43 Definitions ...................................................................................... 46 44 Repeal ........................................................................................... 46 45 Application of this Act .................................................................... 46 46 References to repealed Act ........................................................... 47 Part 7 Transitional matters for Defamation Legislation Amendment Act 2025 Division 1 Part 2 of Defamation Legislation Amendment Act 2025 47 Application of amendments ........................................................... 47 Division 2 Part 3, Division 2 of Defamation Legislation Amendment Act 2025 48 Interpretation ................................................................................. 48 49 Application of digital intermediary amendments ............................ 48 50 Application of offers amendments ................................................. 49 51 Application of preliminary discovery or non-party digital intermediary order amendments .................................................... 49 Defamation Act 2006 iv 52 Application of document giving or service amendments ................ 49 Division 3 Part 3, Division 3 of Defamation Legislation Amendment Act 2025 53 Application of absolute privilege amendments............................... 49 Schedule 1 Additional publications to which absolute privilege applies Schedule 2 Additional kinds of public documents Schedule 3 Additional proceedings of public concern Schedule 4 Acts repealed ENDNOTES NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 11 August 2025 ____________________ DEFAMATION ACT 2006 An Act to enact in the Territory provisions to promote uniform laws of defamation in Australia, and for related purposes Part 1 Preliminary matters 1 Short title This Act may be cited as the Defamation Act 2006. 2 Objects of Act The objects of this Act are: (a) to enact provisions to promote uniform laws of defamation in Australia; and (b) to ensure 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 (c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and (d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. 3 Definitions In this Act: access prevention step, in relation to the publication of digital matter, means a step: (a) to remove the matter; or (b) to block, disable or otherwise prevent access, whether by some or all persons, to the matter. Part 1 Preliminary matters Defamation Act 2006 2 aggrieved person, for Part 3, Division 1, has the meaning in section 11(1). applicable period, for an offer to make amends, see section 13. associated entity, see section 50AAA of the Corporations Act 2001 (Cth). 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) a State; or (b) a Territory; or (c) 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, for Part 2, Division 2A, see section 9B. concerns notice, see section 11A. conduit service, for Part 2, Division 2A, see section 9B. country includes: (a) a federation and a state, territory, province or other part of a federation; and (b) an Australian jurisdiction. 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. Note for definition digital intermediary There may be more than one digital intermediary in relation to the publication of the same digital matter. digital matter means matter published in electronic form by means of an online service. Part 1 Preliminary matters Defamation Act 2006 3 document means any record of information, and includes: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) 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, see section 8. further particulars notice, see section 11A(3). general law means the common law and equity. matter includes: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication; and (c) a letter, note or other writing; and (d) a picture, gesture or oral utterance; and (e) any other thing by means of which something may be communicated to a person. matter in question, for Part 3, Division 1, has the meaning in section 11(1). offer to make amends means an offer to make amends under Part 3, Division 1. Part 1 Preliminary matters Defamation Act 2006 4 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: (a) to access or connect to the internet; or (b) to use the internet to do one or more of the following: (i) send or receive content; (ii) store content; (iii) index content; (iv) search for content; (v) share content; (vi) interact with other persons. Examples for definition online service 1 An internet-based social media platform. 2 A forum created or administered by a person using a facility provided by an internet-based social media platform that enables users to share content or interact with other users about a topic. 3 A website or other internet-based platform that enables knowledge to be shared by or with its users. parliamentary body means: (a) a parliament or legislature of any country; or (b) a house of a parliament or legislature of any country; or (c) a committee of a parliament or legislature of any country; or (d) 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, for Part 2, Division 2A, see section 9B. search engine provider, for Part 2, Division 2A, see section 9B. search result, for Part 2, Division 2A, see section 9B. Part 2 General principles Division 1 Defamation and the general law Defamation Act 2006 5 storage service, for Part 2, Division 2A, see section 9B. publisher, for Part 3, Division 1, has the meaning in section 11(1). substantially true means true in substance or not materially different from the truth. Territory means the Australian Capital Territory or Northern Territory. this jurisdiction means the Northern Territory. 4 Act binds Crown This Act binds the Crown in right of this jurisdiction and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities. Part 2 General principles Division 1 Defamation and the general law 5 Tort of defamation (1) This Act relates to the tort of defamation at general law. (2) 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). (3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the Acts repealed by section 44 had never been enacted. 6 Distinction between slander and libel abolished (1) The distinction at general law between slander and libel remains abolished. (2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage. Part 2 General principles Division 2 Causes of action for defamation Defamation Act 2006 6 Division 2 Causes of action for defamation 7 Single cause of action for multiple defamatory imputations in same matter 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. 8 Certain corporations do not have cause of action for defamation (1) 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. (2) A corporation is an excluded corporation if: (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or (b) it has fewer than 10 employees and is not an associated entity of another corporation; and the corporation is not a public body. (3) 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. (5) 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. (6) 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: (a) engaged in the day-to-day operations of the corporation other than as a volunteer; and (b) subject to the control and direction of the corporation. Part 2 General principles Division 2 Causes of action for defamation Defamation Act 2006 7 public body means a local government body or other governmental or public authority constituted by or under a law of any country. 9 No cause of action for defamation of, or against, deceased persons (1) A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to: (a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or (b) the publication of defamatory matter by a person who has died since publishing the matter. (2) 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 that subsection. 9A Serious harm element of cause of action for defamation (1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. (2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss. (3) The judicial officer in defamation proceedings is to determine whether the serious harm element is established. (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). (5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial Part 2 General principles Division 2A Exemptions from liability for digital intermediaries Defamation Act 2006 8 commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial). (6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following: (a) the cost implications for the parties; (b) the resources available to the court at the time; (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings. (7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element. (8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences). Division 2A Exemptions from liability for digital intermediaries 9B Definitions In this Division: caching service means an online service whose principal function is to provide automatic, intermediate and temporary storage of content for the purpose of making the onward electronic transmission of the content more efficient for its users. Example for definition caching service A service for temporarily and automatically storing files that are most frequently downloaded by users of a website to speed up the download time for the files. conduit service means an online service whose principal function is to enable its users to access or use networks or other infrastructure to connect to, or send or receive data by means of, the internet. Examples for definition conduit service 1 A service provided by an internet service provider enabling its users to connect to the internet. Part 2 General principles Division 2A Exemptions from liability for digital intermediaries Defamation Act 2006 9 2 An internet-based service enabling its users to send emails or send text messages to other persons. search engine means a software application or system designed to enable its users to search for content on the internet. search engine provider, for a search engine, means a person who maintains, or provides users with access to the search functions of, the search engine. search result means a result generated by a search engine that is limited to identifying a webpage on which content is located by reference to one or more of the following: (a) the title of the webpage; (b) a hyperlink to the webpage; (c) an extract from the webpage; (d) an image from the webpage. storage service means an online service, other than a caching service, whose principal function is to enable its users to store content remotely. Example for definition storage service An internet-based cloud service enabling its users to store documents, videos or photographs for later retrieval. 9C Exemption for digital intermediaries providing caching, conduit or storage services (1) A digital intermediary is not liable for defamation for the publication of digital matter if the intermediary proves: (a) the matter was published using one or more of the following services provided by the intermediary: (i) a caching service; (ii) a conduit service; (iii) a storage service; and (b) the intermediary's role in the publication was limited to providing one or more of the services mentioned in paragraph (a); and Part 2 General principles Division 2A Exemptions from liability for digital intermediaries Defamation Act 2006 10 (c) the intermediary did not do any of the following: (i) initiate the steps required to publish the matter; (ii) select any of the recipients of the matter; (iii) encourage the poster of the matter to publish the matter; (iv) edit the content of the matter, whether before or after it was published; (v) promote the matter, whether before or after it was published. (2) Subsection (1)(c) does not apply in relation to action taken because it is required by or under a law of an Australian jurisdiction or an order of an Australian court or Australian tribunal. Example for subsection (2) Action taken to comply with a code of conduct or other document regulating conduct that a digital intermediary is required to comply with by a law of an Australian jurisdiction. (3) Subsection (1) applies regardless of whether the digital intermediary knew, or ought reasonably to have known, the digital matter was defamatory. 9D Exemption for search engine providers (1) A search engine provider for a search engine is not liable for defamation for: (a) the publication of digital matter comprised of search results if the provider's role was limited to providing an automated process for the user of the search engine to generate the results; or (b) the publication of digital matter to which the search results provide a hyperlink if the provider's role in the publication of the matter is limited to the role mentioned in paragraph (a). (2) Subsection (1) does not apply in relation to search results, or to digital matter to which the search results provide hyperlinks, to the extent the results are promoted or prioritised by the search engine provider because of a payment or other benefit given to the provider by or on behalf of a third party. (3) Subsection (1) applies regardless of whether the search engine provider knew, or ought reasonably to have known, the digital matter was defamatory. Part 2 General principles Division 2A Exemptions from liability for digital intermediaries Defamation Act 2006 11 9E Early determination of digital intermediary exemptions (1) The judicial officer in defamation proceedings: (a) is to determine whether a defendant has a digital intermediary exemption; and (b) is to determine whether a digital intermediary exemption is established as soon as practicable before the trial for the proceedings commences unless satisfied that there are good reasons to postpone the determination to a later stage of the proceedings; and (c) may make any orders the judicial officer considers appropriate concerning the determination of the issue, including dismissing the proceedings if satisfied the digital intermediary exemption is established. (2) Without limiting subsection (1): (a) the following matters are relevant in deciding whether there are good reasons to postpone the determination of whether a digital intermediary exemption is established to a later stage of the proceedings: (i) the cost implications for the parties; (ii) the resources available to the court at the time; (iii) the extent to which technical or scientific issues are raised in the proceedings; (iv) the extent to which establishing the digital intermediary exemption is linked to other issues for determination during the trial for the proceedings; and (b) the judicial officer may determine a digital intermediary exemption is established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are sufficient to establish the exemption. (3) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings, whether before or after the trial for the proceedings commences. (4) In this section: digital intermediary exemption means an exemption from liability for defamation mentioned in section 9C or 9D. Part 2 General principles Division 3 Choice of law Defamation Act 2006 12 Division 3 Choice of law 10 Choice of law for defamation proceedings (1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication. (2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication. (3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account: (a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and (b) the extent of publication in each relevant Australian jurisdictional area; and (c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and (d) any other matter that the court considers relevant. (4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section. (5) In this section: Australian jurisdictional area means: (a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 13 (b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or (c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence. external Territory means a Territory, other than the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory, for the government of which as a Territory provision is made by a Commonwealth Act. geographical area of Australia includes: (a) the territorial sea of Australia; and (b) any external Territory. Jervis Bay Territory means the territory referred to in the Jervis Bay Territory Acceptance Act 1915 (Cth). multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends 11 Application of Division (1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person). (2) The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise. (3) This Division does not prevent a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 14 11A Concerns notices (1) For the purpose of this Act, a notice is a concerns notice if: (a) the notice: (i) is in writing; and (ii) specifies the location where the matter in question can be accessed; and (iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question; and (iv) informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question; and (v) for an aggrieved person that is an excluded corporation – also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and (b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice. Example for subsection (1)(a)(ii) A webpage address. (2) To avoid doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice. (3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned. (4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 15 (5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section. Note for section 11A Section 11B requires a concerns notice to be given before proceedings for defamation can be commenced. 11B Defamation proceedings cannot be commenced without concerns notice (1) An aggrieved person cannot commence defamation proceedings unless: (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned; and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on: (a) some, but not all, of the imputations particularised in a concerns notice; or (b) imputations that are substantially the same as those particularised in a concerns notice. (3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court: (a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or (b) it is just and reasonable to grant leave. (4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 16 (5) In this section: limitation law, see section 12(2)(b), Part III, Division 3 and Part V, Division 3 of the Limitation Act 1981. 12 Publisher may make offer to make amends (1) The publisher may make an offer to make amends to the aggrieved person. (2) The offer may be: (a) in relation to the matter in question generally; or (b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries. (3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others. (4) An offer to make amends is taken to have been made without prejudice unless the offer provides otherwise. 13 When offer to make amends may be made (1) An offer to make amends cannot be made if: (a) the applicable period for an offer to make amends has expired; or (b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question. (2) For the purposes of this Act, the applicable period for an offer to make amends is: (a) if the aggrieved person has provided further particulars in response to a further particulars notice about a concerns notice after 14 days have elapsed since the concerns notice was given – 14 days since the publisher was given the further particulars; or (b) in any other case – 28 days since the publisher was given a concerns notice by the aggrieved person. (3) If a publisher gives more than one further particulars notice, subsection (2)(a) applies only in respect of the first notice. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 17 14 Content of offer to make amends (1) An offer to make amends: (a) must be in writing; and (b) must be readily identifiable as an offer to make amends under this Division; and (ba) must provide for the offer to be open for acceptance for at least 28 days commencing on the day the offer is made; and (c) if the offer is limited to any particular defamatory imputations – must state that the offer is so limited and particularise the imputations to which the offer is limited; and (d) must include an offer to publish, or join in publishing, a reasonable correction of, or a clarification of or additional information about, the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and (e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge – must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and (f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer. (1A) In addition to the matters referred to in subsection (1), an offer to make amends may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (a) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; or (b) if the matter is digital matter – an offer to take access prevention steps in relation to the matter; or (c) an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 18 (d) the particulars of any correction or apology made, or action taken, before the date of the offer. (1B) If the matter in question is digital matter, an offer to take access prevention steps may be made instead of, or in addition to, either or both of the offers mentioned in subsection (1)(d) and (e). (2) Without limiting subsection (1A)(c), an offer to pay compensation may comprise or include any one or more of the following: (a) an offer to pay a stated amount; (b) an offer to pay an amount to be agreed between the publisher and the aggrieved person; (c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person; (d) an offer to pay an amount determined by a court. (3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine: (a) if the offer provides for a court to determine the amount of compensation payable under the offer – the amount of compensation to be paid under the offer; and (b) any other question that arises about what must be done to carry out the terms of the offer. (4) The powers conferred on a court by subsection (3) are exercisable: (a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question – by that court in those proceedings; and (b) except as provided in paragraph (a), by the Supreme Court. 15 Withdrawal of offer to make amends (1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person. (2) A publisher who has withdrawn an offer to make amends may make a renewed offer. (3) A renewed offer may (but need not) be in the same terms as the withdrawn offer. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 19 (4) A renewed offer is to be treated as a new offer (including for the purposes of section 13). (5) However, the time limit specified in section 13 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if: (a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer; and (b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person. 16 Effect of acceptance of offer to make amends (1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations. (2) A court may (but need not): (a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer; and (b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis. (3) The powers conferred on a court by subsection (2) are exercisable: (a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question – by that court in those proceedings; and (b) except as provided in paragraph (a), by the Supreme Court. Part 3 Resolution of civil disputes without litigation Division 1 Concerns notices and offers to make amends Defamation Act 2006 20 17 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends); and (b) the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and (c) in all the circumstances the offer was reasonable. (2) In determining whether an offer to make amends is reasonable, a court: (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and (b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and (ii) any other matter that the court considers relevant. Part 3 Resolution of civil disputes without litigation Division 2 Apologies Defamation Act 2006 21 18 Inadmissibility of evidence of certain statements and admissions (1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil). (2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine: (a) any issue arising under, or relating to the application of, a provision of this Division; or (b) costs in defamation proceedings. Division 2 Apologies 19 Effect of apology on liability for defamation (1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person: (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and (b) is not relevant to the determination of fault or liability in connection with that matter. (2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. (3) Nothing in this section limits the operation of section 35. Part 4 Litigation of civil disputes Division 1 General Defamation Act 2006 22 Part 4 Litigation of civil disputes Division 1 General 20 Leave required for multiple proceedings in relation to publication of same defamatory matter (1) This section applies to a person who has brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter. (2) The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought. (3) A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceedings related, the person was: (a) an employee of the defendant; or (b) a person publishing matter as a contractor of the defendant; or (c) an associated entity of the defendant (or an employee or contractor of the associated entity). 20A Orders for preliminary discovery about posters of digital matter (1) This section applies if the court procedure law for a court allows a person seeking to bring defamation proceedings for the publication of digital matter to obtain an order for, or in the nature of, preliminary discovery for either or both of the following purposes: (a) to obtain information to assist in identifying the posters of the matter; (b) to obtain information to assist in locating physical or digital addresses for the posters of the matter to allow concerns notices to be given to them or defamation proceedings against them to be commenced. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 23 (2) Despite anything to the contrary in the court procedure law for a court, the court must take the following matters into account before making an order mentioned in subsection (1): (a) the objects of this Act; (b) privacy, safety or other public interest considerations that may arise if the order is made. Example for subsection 2(b) Evidence suggesting the poster of digital matter is in fear of domestic violence from the person seeking an order to obtain the poster's address. (3) This section does not limit the matters the court may take into account before making an order mentioned in subsection (1). (4) In this section: court procedure law, for a court, means: (a) rules of court for the court; or (b) an Act or other legislation that regulates the practice or procedure of the court; or (c) the general law concerning the inherent or implied jurisdiction or powers of the court. Division 2 Defences 21 Scope of defences under general law and other law not limited (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability. (2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice. 22 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 24 23 Defence of contextual truth (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried one or more imputations that are substantially true (contextual imputations); and (b) any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. (2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains. 24 Defence of absolute privilege (1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if: (a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to): (i) the publication of a document by order, or under the authority, of the body; and (ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law; and (iii) the publication of matter while giving evidence before the body; and (iv) the publication of matter while presenting or submitting a document to the body; or (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 25 (ii) the publication of matter while giving evidence before the court or tribunal; and (iii) the publication of matter in any judgment, order or other determination of the court or tribunal; or (ba) the matter is published to a person who, at the time of the publication, is an official of a police force or service of an Australian jurisdiction and it is published to the official while the official is acting in an official capacity; or (c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section; or (d) the matter is published by a person or body in any circumstances specified in Schedule 1. (3) In this section: official, of a police force or service of an Australian jurisdiction means: (a) an officer, employee or member of staff of the police force or service; or (b) another person engaged to act for or on behalf of the police force or service. 25 Defence for publication of public documents (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document. (2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about: (a) the formal requirements for the content or layout of the report or document; or (b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body, Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 26 the report or document is a public document despite that non- compliance. (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section: public document means: (a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law; or (b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including: (i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and (ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination; or (c) any report or other document that under the law of any country: (i) is authorised to be published; or (ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body; or (d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public; or (e) any record or other document open to inspection by the public that is kept: (i) by an Australian jurisdiction; or (ii) by a statutory authority of an Australian jurisdiction; or (iii) by an Australian court; or Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 27 (iv) under legislation of an Australian jurisdiction; or (f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section; or (g) any document of a kind specified in Schedule 2. 26 Defences of fair report of proceedings of public concern (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section: proceedings of public concern means: (a) any proceedings in public of a parliamentary body; or (b) any proceedings in public of an international organisation of any countries or of the governments of any countries; or (c) any proceedings in public of an international conference at which the governments of any countries are represented; or Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 28 (d) any proceedings in public of: (i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations; or (ii) any other international judicial or arbitral tribunal; or (e) any proceedings in public of a court or arbitral tribunal of any country; or (f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country; or (g) any proceedings in public of a local government body of any Australian jurisdiction; or (h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the society; or (ii) a person subject by contract or otherwise by law to control by the society; or (i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the association; or (ii) a person subject by contract or otherwise by law to control by the association; or (j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the association; or (ii) a person subject by contract or otherwise by law to control by the association; or Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 29 (k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 held anywhere in Australia; or (l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office; or (m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman; or (n) any proceedings in public of a law reform body of any country; or (o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section; or (p) any proceedings of a kind specified in Schedule 3. (5) In this section: law reform body, of a country, means a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country. learned society means a body, wherever formed: (a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field; and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with those objects; and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. ombudsman, of a country, means a person (however described and whether or not permanent or full-time) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 30 relevant objects, of a learned society, sport or recreation association or trade association, means: (a) for a learned society – objects of the kind referred to in paragraph (a) of the definition of learned society in this subsection; or (b) for a sport or recreation association – objects of the kind referred to in paragraph (a) of the definition of sport or recreation association in this subsection; or (c) for a trade association – objects of the kind referred to in paragraph (a) of the definition of trade association in this subsection. sport or recreation association means a body, wherever formed: (a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime; and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime; and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. trade association means a body, wherever formed: (a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling; and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling; and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 31 26A Defence of publication of matter concerning issue of public interest (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter concerns an issue of public interest; and (b) the defendant reasonably believed that the publication of the matter was in the public interest. (2) In determining whether the defence is established, a court must take into account all of the circumstances of the case. (3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances: (a) the seriousness of any defamatory imputation carried by the matter published; (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; (c) the extent to which the matter published relates to the performance of the public functions or activities of the person; (d) whether it was in the public interest in the circumstances for the matter to be published expeditiously; (e) the sources of the information in the matter published, including the integrity of the sources; (f) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person's identity to be kept confidential; (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; (h) any other steps taken to verify the information in the matter published; (i) the importance of freedom of expression in the discussion of issues of public interest. Example for subsection (3)(f) To comply with an applicable professional code or standard. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 32 (4) Subsection (3) does not: (a) require each factor referred to in that subsection to be taken into account; or (b) limit the matters that the court may take into account. 27 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject; and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account the following factors to the extent the court considers them applicable in the circumstances: (a) the seriousness of any defamatory imputation carried by the matter published; (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; (c) the nature of the business environment in which the defendant operates; (d) whether it was appropriate in the circumstances for the matter to be published expeditiously; (e) any other steps taken to verify the information in the matter published. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 33 (3A) Subsection (3) does not: (a) require each factor referred to in that subsection to be taken into account; or (b) limit the matters that the court may take into account. (3B) It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1). (4) To avoid doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward. 27A Defence of scientific or academic peer review (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was published in a scientific or academic journal (whether published in electronic form or otherwise); and (b) the matter relates to a scientific or academic issue; and (c) an independent review of the matter's scientific or academic merit was carried out before the matter was published in the journal by: (i) the editor of the journal if the editor has expertise in the scientific or academic issue concerned; or (ii) one or more persons with expertise in the scientific or academic issue concerned. (2) If there is a defence to the publication of defamatory matter in a scientific or academic journal because of subsection (1), there is also a defence to the publication of any assessment of the matter in the same journal if the defendant proves that: (a) the assessment was written by one or more of the persons who carried out the independent review of the matter; and (b) the assessment was written in the course of that review. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 34 (3) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a fair summary of, or fair extract from, a matter or assessment for which there is a defence because of subsection (1) or (2). (4) If a journal has more than one editor, a reference in this section to the editor of the journal is to be read as a reference to the editor or editors who were responsible for deciding to publish the matter concerned. (5) A defence established under this section is defeated if, and only if, the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education. 28 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact; and (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 35 (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1) – the opinion was not honestly held by the defendant at the time the defamatory matter was published; or (b) in the case of a defence under subsection (2) – the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or (c) in the case of a defence under subsection (3) – the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on proper material if: (a) the material on which it is based is: (i) set out in specific or general terms in the published matter; or (ii) notorious; or (iii) accessible from a reference, link or other access point included in the matter; or (iv) otherwise apparent from the context in which the matter is published; and (b) the material: (i) is substantially true; or (ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or (iii) was published on an occasion that attracted the protection of a defence under this section or section 25 or 26. Example for subsection (5)(a)(iii) A hyperlink on a webpage. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 36 (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. 28A Defence for publications involving digital intermediaries (1) It is a defence to the publication of defamatory digital matter if the defendant proves: (a) the defendant was a digital intermediary in relation to the publication; and (b) the defendant had, at the time of the publication, an accessible complaints mechanism for the plaintiff to use; and (c) if the plaintiff gave the defendant a written complaint under this section about the publication – reasonable access prevention steps, if steps were available, were taken in relation to the publication, whether before the complaint was given or within 7 days after the complaint was given. Notes for subsection (1) 1 The defendant is not required to prove paragraph (c) to establish the defence if the plaintiff has not given the defendant a complaint about the publication under this section. Subsection (3) sets out requirements for giving complaints. 2 Subsection (6) defines accessible complaints mechanism. (2) For subsection (1)(c), reasonable access prevention steps were taken in relation to the publication of digital matter if: (a) for access prevention steps taken by the defendant – the steps taken were reasonable for the defendant to take in the circumstances; or (b) for access prevention steps taken by another person – it was reasonable for the defendant not to take steps because of the steps already taken. (3) A written complaint is given under this section about the publication of defamatory digital matter if: (a) the complaint contained information sufficient to enable a reasonable person in the defendant’s circumstances to be made aware of the following: (i) the name of the plaintiff; (ii) the matter and where it could be located; Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 37 (iii) that the plaintiff considered the matter to be defamatory; and (b) the complaint was given using an accessible complaints mechanism for the plaintiff to use or given to the defendant in another way permitted by section 41. (4) A defence under this section is defeated only if the plaintiff proves the defendant was actuated by malice in establishing or providing the online service by means of which the digital matter was published. (5) A defendant who would otherwise be a digital intermediary in relation to the publication of digital matter does not cease to be a digital intermediary for this section merely because the defendant took steps to detect or identify, or steps to remove, block, disable or otherwise prevent access by persons to, the following: (a) defamatory or other unlawful content published, or sought to be published, by a person using the online service provided by the defendant; (b) other content published, or sought to be published, by a person using the online service provided by the defendant that was incompatible with the terms or conditions under which the service was provided. Note for subsection (5) This subsection allows a defendant to rely on the defence, despite the definition of digital intermediary in section 3 excluding authors, originators or posters of digital matter, if the defendant's editorial or moderating role over content published using the online service was limited to the steps mentioned in this subsection. (6) In this section: accessible complaints mechanism, for a plaintiff to use, means an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned. Examples for definition accessible complaints mechanism 1 An email address or direct messaging address to which a complaint may be sent. 2 A webpage, or a part of a webpage, enabling details about a complaint to be uploaded or inputted. Part 4 Litigation of civil disputes Division 2 Defences Defamation Act 2006 38 29 Defence of innocent dissemination (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and (c) the defendant's lack of knowledge was not due to any negligence on the part of the defendant. (2) For the purposes of subsection (1)(a), a person is a subordinate distributor of defamatory matter if the person: (a) was not the first or primary distributor of the matter; and (b) was not the author or originator of the matter; and (c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published. (3) Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of: (a) a bookseller, newsagent or news-vendor; or (b) a librarian; or (c) a wholesaler or retailer of the matter; or (d) a provider of postal or similar services by means of which the matter is published; or (e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; or (f) a provider of services consisting of: (i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or Part 4 Litigation of civil disputes Division 3 Remedies Defamation Act 2006 39 (ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form; or (g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or (h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person. Division 3 Remedies 31 Damages to bear rational relationship to harm In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 32 Damages for non-economic loss limited (1) The maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded. (2) The maximum damages amount is to be awarded only in a most serious case. (2A) Subsection (1) does not limit the court's power to award aggravated damages if an award of aggravated damages is warranted in the circumstances. (2B) An award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies. (3) The Minister must, on or before 1 July 2006 and on or before 1 July in each succeeding year, declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1). (4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) Part 4 Litigation of civil disputes Division 3 Remedies Defamation Act 2006 40 adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full- time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available. (5) An amount declared for the time being under this section applies to the exclusion of the amount of $250 000 or an amount previously adjusted under this section. (6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the Regulations. (7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500. (8) A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date. 33 State of mind of defendant generally not relevant to awarding damages In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 34 Exemplary or punitive damages cannot be awarded A plaintiff cannot be awarded exemplary or punitive damages for defamation. 35 Factors in mitigation of damages (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that: (a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or (b) the defendant has published a correction of the defamatory matter; or Part 4 Litigation of civil disputes Division 3 Remedies Defamation Act 2006 41 (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. (2) Subsection (1) does not operate to limit the matters that can be taken into account by a court in mitigation of damages. 36 Damages for multiple causes of action may be assessed as single sum If the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the judicial officer may assess damages in a single sum. 36A Orders against non-party digital intermediaries concerning defamatory digital matter (1) This section applies in relation to defamation proceedings for the publication of digital matter if: (a) the plaintiff has obtained judgment for defamation against the defendant in the proceedings; or (b) a court has granted a temporary injunction or makes another temporary order preventing the defendant from continuing to publish, or from republishing, the matter pending the determination of the proceedings; or (c) a court has granted a final injunction or makes another final order preventing the defendant from continuing to publish, or from republishing, the matter. (2) In defamation proceedings to which this section applies, the court may order a digital intermediary who is not a party to the proceedings (a non-party digital intermediary) to take access prevention steps or other steps the court considers necessary in the circumstances: (a) to prevent or limit the continued publication or republication of the matter; or Part 4 Litigation of civil disputes Division 4 Costs Defamation Act 2006 42 (b) to comply with, or otherwise give effect to, the judgment, injunction or other order mentioned in subsection (1). (3) Without limiting subsection (2), an order under this section may: (a) require one or more steps to be taken; or (b) require a step to be taken in relation to all, or only some, of the users of an online service. (4) The court may not make an order under this section against a non-party digital intermediary unless the intermediary has been given an opportunity to be heard about whether it is appropriate for the order to be made. (5) Despite subsection (4), the court may make a temporary order without giving the non-party digital intermediary an opportunity to be heard about whether it is appropriate to make the order if the court considers it necessary in the circumstances for the order to be made expeditiously pending a subsequent hearing concerning whether a further temporary order or a final order should be made. (6) An order may be made under this section even if the non-party digital intermediary is not, or may not be, liable for defamation, including because of a defence, for the publication of the digital matter to which the defamation proceedings relate. (7) This section does not limit other powers the court may have apart from this section to grant injunctions or make other orders requiring a non-party digital intermediary to take access prevention steps or other steps. Division 4 Costs 37 Costs in defamation proceedings (1) In awarding costs in defamation proceedings, the court may have regard to: (a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings); and (b) any other matters that the court considers relevant. Part 5 Miscellaneous matters Defamation Act 2006 43 (2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise): (a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff – order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or (b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant – order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied the plaintiff unreasonably failed to accept a settlement offer made by the defendant. (3) In this section: settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made. Part 5 Miscellaneous matters 38 Proof of publication (1) If a document appears to be printed or otherwise produced by means adapted for the production of numerous copies and there is in the document a statement to the effect that the document is printed, produced, published or distributed by or for a particular person, the statement is evidence in defamation proceedings that the document was so printed, produced, published or distributed. (2) Evidence that a number or part of a document appearing to be a periodical is printed, produced, published or distributed by or for a particular person is evidence in defamation proceedings that a document appearing to be another number or part of the periodical was so printed, produced, published or distributed. (3) In this section: periodical includes any newspaper, review, magazine or other printed document of which numbers or parts are published periodically. Part 5 Miscellaneous matters Defamation Act 2006 44 39 Proof of convictions for offences (1) If the question whether or not a person committed an offence is in question in defamation proceedings: (a) proof that the person was convicted of the offence by an Australian court is conclusive evidence that the person committed the offence; and (b) proof that the person was convicted of the offence by a court of any country (other than an Australian court) or a court martial of any country is evidence that the person committed the offence. (2) For the purposes of this section, the contents of a document that is evidence of conviction of an offence, and the contents of an information, complaint, indictment, charge sheet or similar document on which a person is convicted of an offence, are admissible in evidence to identify the facts on which the conviction is based. (3) Subsection (2) does not affect the admissibility of other evidence to identify the facts on which the conviction is based. (4) In this section: conviction, for an offence, includes a finding of guilt, but does not include: (a) a conviction that has been set aside or quashed; or (b) a conviction for an offence for which a person has received a pardon. 40 Incriminating answers, documents or things (1) A person who is required to answer a question, or to discover or produce a document or thing, in defamation proceedings is not excused from answering the question or discovering or producing the document or thing on the ground that the answer to the question or the discovery or production of the document or thing might tend to incriminate the person of an offence of criminal defamation. (2) However, any answer given to a question, or document or thing discovered or produced, by a natural person in compliance with the requirement is not admissible in evidence against the person in proceedings for criminal defamation. Part 5 Miscellaneous matters Defamation Act 2006 45 41 Giving of notices and other documents (1) For the purposes of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person): (a) in the case of a natural person: (i) by delivering it to the person personally; or (ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document; or (iii) by sending it by facsimile transmission to the facsimile number of the person; or (iv) sending it by email, messaging or other electronic communication to an electronic address or location indicated by the person for giving documents to, or serving documents on, the person; or (b) in the case of a body corporate: (i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents; or (ii) by sending it by facsimile transmission to the facsimile number of the body corporate; or (iii) sending it by email, messaging or other electronic communication to an electronic address or location indicated by the body corporate for giving documents to, or serving documents on, the body corporate. Examples for subsection (1)(a)(iv) and (b)(iii) 1 An email address or direct messaging address set out on an internet-based social media forum for contacting the administrator of the forum about content on the forum. 2 An email address or direct messaging address provided by the poster of digital matter on an internet-based social media forum for contacting the poster about the content of the matter. 3 A form on a website provided by a digital intermediary enabling a user to contact the intermediary by filling in the form or uploading documents. Part 6 Repeals and transitional matters for Defamation Act 2006 Defamation Act 2006 46 (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be given to or served on a person in any other manner. 42 Regulations The Administrator may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. Part 6 Repeals and transitional matters for Defamation Act 2006 43 Definitions In this Part: commencement date means the date on which this Part comes into operation. repealed Act means the Defamation Act 1938 as in force immediately before the commencement date. 44 Repeal The Acts specified in Schedule 4 are repealed. 45 Application of this Act (1) This Act applies to the publication of defamatory matter after the commencement date, unless subsection (2) applies. (2) The provisions of this Act (other than this section) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement date (the post-commencement action) if: (a) the post-commencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff; and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); and Part 7 Transitional matters for Defamation Legislation Amendment Act 2025 Division 1 Part 2 of Defamation Legislation Amendment Act 2025 Defamation Act 2006 47 (c) one or more of the other causes of action in the proceedings accrued before the commencement date (a pre-commencement action); and (d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued. (3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted: (a) any cause of action that accrued before the commencement date; (b) any post-commencement action to which the other provisions of this Act do not apply because of subsection (2). (4) In this section: existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement date. 46 References to repealed Act In an Act or document, a reference to the repealed Act or a provision of that Act may, if the context permits, be taken to be a reference to this Act or the corresponding provision of this Act. Part 7 Transitional matters for Defamation Legislation Amendment Act 2025 Division 1 Part 2 of Defamation Legislation Amendment Act 2025 47 Application of amendments An amendment made to this Act by Part 2 of the Defamation Legislation Amendment Act 2025 applies only in relation to the publication of defamatory matter after the commencement of the amendment. Part 7 Transitional matters for Defamation Legislation Amendment Act 2025 Division 2 Part 3, Division 2 of Defamation Legislation Amendment Act 2025 Defamation Act 2006 48 Division 2 Part 3, Division 2 of Defamation Legislation Amendment Act 2025 48 Interpretation (1) In this Division: amending Act means the Defamation Legislation Amendment Act 2025. commencement means the commencement of Part 3, Division 2 of the amending Act. post-commencement action means a cause of action for the publication of defamatory matter accruing after the commencement. pre-commencement action means a cause of action for the publication of defamatory matter accruing before the commencement. (2) In this Division, a reference to an amendment of this Act or to the commencement of a provision of this Act includes a reference to any definition inserted by section 32 of the amending Act used in the relevant amendment or provision. 49 Application of digital intermediary amendments Part 2, Division 2A and section 29A do not apply to a post-commencement action if: (a) the post-commencement action is one of 2 or more causes of action in a proceeding commenced by a plaintiff; and (b) each cause of action in the proceeding accrues because of the publication of the same, or substantially the same, matter on separate occasions, whether by the same defendant or another defendant; and (c) one or more of the other causes of action in the proceeding are pre-commencement actions; and (d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceeding accrued. Part 7 Transitional matters for Defamation Legislation Amendment Act 2025 Division 3 Part 3, Division 3 of Defamation Legislation Amendment Act 2025 Defamation Act 2006 49 50 Application of offers amendments The amendments to section 14 by the amending Act apply to any offer to make amends made after the commencement, including an offer to make amends that relates to a publication before the commencement. 51 Application of preliminary discovery or non-party digital intermediary order amendments (1) Sections 20A and 36A apply to the making of an order after the commencement, including if the proceeding in which the order is made: (a) involves a pre-commencement action; or (b) was commenced before the commencement. (2) Sections 20A and 36A do not apply to the variation or revocation of an order that was made before the commencement. 52 Application of document giving or service amendments The amendments to section 41 by the amending Act apply to the giving or service of notices or other documents after the commencement even if the notices or other documents relate: (a) to a pre-commencement action; or (b) to a proceeding commenced before the commencement. Division 3 Part 3, Division 3 of Defamation Legislation Amendment Act 2025 53 Application of absolute privilege amendments (1) Section 24, as in force immediately before the commencement of the amending Division, continues to apply in respect of a pre-commencement action despite the amendments to that section by the amending Division. (2) In this section: amending Division means Part 3, Division 3 of the Defamation Legislation Amendment Act 2025. pre-commencement action, in relation to the amending Division, means a cause of action for the publication of defamatory matter accruing before the commencement of the amending Division. Schedule 1 Additional publications to which absolute privilege applies Defamation Act 2006 50 Schedule 1 Additional publications to which absolute privilege applies section 24(2)(d) Note for Schedule 1: Currently there are no provisions in this Schedule but it has been included for consistency with the national model provisions. Schedule 2 Additional kinds of public documents Defamation Act 2006 51 Schedule 2 Additional kinds of public documents section 25(4) definition of public document, paragraph (g) Note for Schedule 2: Currently there are no provisions in this Schedule but it has been included for consistency with the national model provisions. Schedule 3 Additional proceedings of public concern Defamation Act 2006 52 Schedule 3 Additional proceedings of public concern section 26(4) definition of proceedings of public concern, paragraph (p) Note for Schedule 3: Currently there are no provisions in this Schedule but it has been included for consistency with the national model provisions. Schedule 4 Acts repealed Defamation Act 2006 53 Schedule 4 Acts repealed section 44 Defamation Ordinance 1938 Ordinance No. 10 of 1938 Defamation Ordinance 1963 Ordinance No. 76 of 1963 Defamation Ordinance 1964 Ordinance No. 51 of 1964 Defamation Amendment Act 1989 Act No. 49 of 1989 ENDNOTES Defamation Act 2006 54 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Defamation Act 2006 (Act No. 8, 2006) Assent date 26 April 2006 Commenced 26 April 2006 Defamation Legislation Amendment Act 2025 (Act No. 20, 2025) Assent date 10 August 2025 Commenced 11 August 2025 (s 2) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: s 1. 4 LIST OF AMENDMENTS s 3 amd No. 20, 2025, ss 4 and 32 s 8 amd No. 20, 2025, s 5 s 9 amd No. 20, 2025, s 6 s 9A ins No. 20, 2025, s 7 pt 2 div 2A hdg ins No. 20, 2025, s 33 ss 9B – 9E ins No. 20, 2025, s 33 pt 3 div 1 hdg amd No. 20, 2025, s 8 ss 11A – 11B ins No. 20, 2025, s 9 s 13 amd No. 20, 2025, s 10 s 14 amd No. 20, 2025, ss 11 and 34 s 17 amd No. 20, 2025, s 12 s 20 sub No. 20, 2025, s 13 s 20A ins No. 20, 2025, s 35 ENDNOTES Defamation Act 2006 55 s 23 sub No. 20, 2025, s 14 s 24 amd No. 20, 2025, s 40 s 26A ins No. 20, 2025, s 15 s 27 amd No. 20, 2025, s 16 s 27A ins No. 20, 2025, s 17 s 28 amd No. 20, 2025, s 18 s 28A ins No. 20, 2025, s 36 s 30 rep No. 20, 2025, s 19 s 32 amd No. 20, 2025, s 20 s 36A ins No. 20, 2025, s 37 s 41 amd No. 20, 2025, ss 21 and 38 pt 7 hdg exp No. 8, 2006, s 56 ins No. 20, 2025, s 22 pt 7 div 1 hdg exp No. 8, 2006, s 56 ins No. 20, 2025, s 22 s 47 exp No. 8, 2006, s 47(4) ins No. 20, 2025, s 22 pt 7 div 2 hdg exp No. 8, 2006, s 56 ins No. 20, 2025, s 39 ss 48 – 52 exp No. 8, 2006, s 56 ins No. 20, 2025, s 39 pt 7 div 3 hdg exp No. 8, 2006, s 56 ins No. 20, 2025, s 41 s 53 exp No. 8, 2006, s 56 ins No. 20, 2025, s 41 ss 54 – 55 exp No. 8, 2006, s 56 s 56 exp No. 8, 2006, s 56