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What constitutes best practice for defamation lawyers in 2023
With big legislative changes coming about in defamation law, a BigLaw partner and an associate discuss best practice for defamation lawyers this year.
Jess Feyder
Recently on The Lawyers Weekly Show, Bartier Perry partner Adam Cutri and associate David de Mestre discussed best practice for defamation lawyers in light of changes to defamation law coming in this year.
“A lot of lawyers in this area are preparing to advise their clients that are in the digital media space — big corporations, online social media companies.
“They’re preparing to review their client’s policies and start considering what changes can be made in light of these upcoming legislative reforms,” explained Mr de Mestre.
The pair outlined some challenges that will be faced in light of the reforms.
Mr Cutri commented: “The biggest challenge, over the next 12 months will really be to see how the court continues to apply the serious harm tests and the relevant threshold levels that they set down.”
Mr de Mestre weighed in: “A challenge claimants will face is a lot of interlocutory steps.”
“There’ll be a lot of separate determinations of the serious harm element, and those can be brought by way of summary strikeout applications or other sort of pleading disputes.
“What’s already an expensive process may very well become even more expensive with these sorts of interlocutory processes that are available,” he added.
“It’s becoming harder and harder to successfully sue in defamation.
“The stakes are increasing, and we’re seeing the courts really commit to quashing small claims with small prospects of high damages awards.”
The pair discussed what trends might emerge for high-profile cases.
“Given the strict reading of the legislation and the model reforms and the implementation of serious harm, I think it’ll likely only be those people who are in the political spotlight and/or celebrity spotlight who will really be bringing these types of claims into the future,” Mr Cutri conjectured.
“I form that view on the basis that they’re the ones who are most likely to be able to establish that there’s been serious harm to their reputation, in terms of economic loss.
“We’ll probably see less claims and recoveries in 2023, in order to get to that point, you’ll have to show the maliciousness of the publication.”
Mr Cutri continued: “We’ll probably see a large-scale sweeping reform to internet intermediary policies. They will seek to try and maximise their reliance on the legislation and exclude liability as far as they can.”
In light of the changes to how defamation cases will be viewed by courts, Mr Cutri and Mr de Mestre gave tips for how lawyers can advise effectively.
Mr de Mestre weighed in: “A tip for lawyers is to start considering which clients could benefit from a review of their policy reforms, their privacy reforms, whether they have take down processes in place or whether that needs to be implemented, and how they can best take advantage of these conditional statutory defences and safe harbour protections.”
“In terms of the economic impact, it’s expensive to run litigation such as defamation claims, and that’s why we say that it is our best practice is to manage client expectations from the beginning, get the evidence early, if necessary, get counsel’s advice on prospects, and inform clients that it can be a gruelling process.
“There may be other quicker options available that don’t involve contested litigation,” Mr de Mestre highlighted.
Mr Cutri stated: “Our number one best practice principle would really be to familiarise oneself with the concerns notice requirements — the time limits.”
“In the concerns notice now there is a requirement to properly plead out your serious harm element,” he explained. “So it’ll become apparent very early on for lawyers practising in this area whether or not their client will likely be successful in any application to the court.
“The other aspect is that if concerns notices are not properly drafted, often you can find yourself in court getting hosed out very quickly and having to restart the process again.
“With the time constraints and the time limitations imposed on defamation actions being a year from the date of publication, that might be the difference between your client being within time or out of time.”
Mr Cutri shared another tip: “Read up and ask questions, ask other people in the industry, reach out to people for coffee and have a chat with people in this area.
“It’s all about communication. It’s all about learning.
“These things are going to be new to all of us practising in the area, and I’m sure we’re all going to make mistakes as we go, but we should all be trying to familiarise ourselves with the area.”
