Strict liability and the fault in Australian defamation law: towards a fault-based tort of defamation

Sebastian Candido

Research output: Contribution to journalArticlepeer-review

Abstract

Despite the Council of Attorneys-General review into the Model Defamation Provisions and recent changes to Australian defamation law, a central aspect of the law still requires fundamental review and reform — defamation’s strict liability standard. While this standard was justified historically, there are two substantial issues with its operation today. First, the standard stacks the required balance between reputational protection and free expression in favour of the former, which overly inhibits the latter. Second, defamation law has been so infiltrated by fault-based considerations despite its strict liability standard that the nature of the tort is now confused and its basis undermined. Consequently, this article supports a reformulation of Australian defamation law from strict liability to a fault-based system. Drawing on precedent from American defamation law and an analogous area of Australian tort law, it contends that the defamation cause of action should be enacted into statute with a new element inserted requiring the plaintiff to prove that the defendant’s publication was not reasonable in the circumstances. This reform will add greater balance and doctrinal coherence to an area of law touching on intimately personal and socially-valuable interests.
Original languageEnglish
Pages (from-to)118-148
Number of pages31
JournalTorts Law Journal
Volume28
Issue number2
Publication statusPublished - May 2023

Keywords

  • Defamation
  • Strict liability
  • Torts
  • Protection of reputation
  • Freedom of expression
  • Legal history

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