Strict liability in the law of defamation

Strict liability in the law of defamation

The Standing Committee of Attorneys-General is currently considering substantial reform to Australia's existing defamation laws. In earlier articles, I have suggested reform is required in relation to the multiple publication rule, and in relation to the liability of tech companies in relation to defamation. In this article, a more radical change is suggested. Defamation is traditionally a tort of strict liability, not requiring proof of fault on the defendant's part. Strict liability has a rich history in the law of tort, but has progressively become more isolated, as fault-based negligence has become more dominant. While strict liability made sense historically, in terms of the goals of the law of tort, its rationales have weakened over time as the tort landscape has changed. Defamation law has sought to accommodate, to some extent, fault-based questions through the use of convoluted defences. It is argued here that it would be simpler to define the tort in terms of fault in a reformed law of defamation, rather than introduce it through the back door of defences to a tort of ostensible strictness. American law provides a partial, but not complete, guide in this process.

This article was first published by Thomson Reuters in Tort Law Review and should be cited as Anthony Gray, Strict liability in the law of defamation, (2019) 27 Tort L Rev 81. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.