Dr. Mark Hanna:

I thank the committee for the opportunity to comment on the general scheme of the defamation (amendment) Bill. I am an assistant professor in media law at Durham University and I conduct research on the development of defamation law across common law jurisdictions.

In general, I welcome the Bill. It better promotes freedom of expression on matters of public interest, which is vital to any democratic republic. It also aims to curb abuse of defamation proceedings to silence those who would speak out in the public interest. I recognise, however, that although globally connected, this remains a close-knit society, where a person's reputation is not just a commodity, but an important right. In many ways, new media has only multiplied the scope and consequence of defamation. Any reform must therefore be careful to strike the delicate balance between rights. Admittedly, this is not an easy task.

On specific provisions in the general scheme, I will summarise the points made in my written submission. First, I welcome the reversal of the presumption of jury trials, not the abolition. I understand the theory behind having juries try defamation cases. In practice, however, they rarely play this role and their prospect only delays and complicates proceedings and makes them more expensive. There is no doubt that this delay, complication and expense can be gamed by those who would initiate what the general scheme refers to as "SLAPPs".

Second, I also recommend a more general serious harm test rather than the limited serious harm thresholds introduced under heads 4 through 6. It appears somewhat odd that the general scheme introduces an early dismissal mechanism, which I would say goes too far, but leaves out a general serious harm test that would help to deal with SLAPPs in a way that more effectively struck the balance. I recommend a simplification of the public interest defence under head 16. As I wrote in my submission, the easy way to achieve this is simply by excising subhead (1)(c) there.

On the "measures against abusive litigation to restrict public participation" or SLAPPS, the protection of public interest speech is obviously paramount, but this always requires a sensitivity to the facts of the specific case. I am not sure the definition under head 24 captures this. Regarding the "features of concern" under head 24 and the provision for the early dismissal of claims under head 26, any such provision must make allowance for lay litigants and ineffective legal assistance.

This speaks to the complexity of proceedings and the need to strike the balance of rights.

The early dismissal mechanism should deal adequately with SLAPPs, but will also likely bar some claims which involve a legitimate attempt at vindication. That may only amount to a small number of cases in practice but enough to violate the rights to access to justice and reputation which are otherwise held in high regard in this jurisdiction. I think this provision needs a more careful design.

I thank the committee for the opportunity to speak on this important issue, and I hope the contribution is of assistance in the necessary reform of this area of law.