The Government should give urgent consideration to the development of privacy laws, including the interaction of those laws with the law of defamation.

The issue of falsity should be decided by the judge.

The issue of public interest should be decided by the judge.

Section 7A(3) of the Defamation Act 1974 should be redrafted to provide explicitly that the issue of publication be decided by the jury.

In general, falsity should be an essential ingredient of the cause of action in the tort of defamation and the Defamation Act 1974 (NSW) should be amended consequentially.

Recommendation 6 (page 68)

In an action for damages, the plaintiff, instead of proving that the defamatory imputations are false, may prove that they do not relate to a matter of public interest.

The burden of proving that a defamatory imputation is false should rest on the plaintiff.

The plaintiff may establish a cause of action for damages in defamation by establishing that the defamatory imputation is inherently not capable of being proved true or false.

Where the defendant relies on the defence of comment under section 32 of the Defamation Act 1974, the defendant should bear the onus of showing that the comment is the honest expression of the defendant’s opinion. Where the defendant relies on the defence of comment under section 33, the defendant should bear the onus of showing that the comment is the honest expression of the opinion of the defendant’s servant or agent.

Plaintiffs must elect to bring an action either for a declaration that the imputations published are false or for general damages for non-economic loss.

A plaintiff may combine a claim for damages for economic loss with an application for a declaration of falsity, but the court will not consider the claim for economic loss until after the declaration is granted.

Recommendation 12 (page 92)

The election of a plaintiff who successfully seeks a declaration becomes final when the defendant complies with the orders ancillary to the declaration.

Recommendation 13 (page 96)

A declaration of falsity should be available in the court’s discretion.

Recommendation 14 (page 103)

“Affirmative defences” to actions for damages in defamation cases cannot be raised to defeat an application for a declaration of falsity. However, where the defendant has a triable defence of absolute privilege, protected report or court or official notice, the court will not grant a declaration of falsity.

Recommendation 15 (page 103)

Declarations should be sought within four weeks of publication or, exceptionally, within such other period as the court may in its discretion determine, to a maximum of one year from publication.

Declarations of falsity should be obtainable only in the Supreme Court.

A declaration of falsity should be heard by a judge alone.

The defendant should be ordered to publish the declaratory judgment as delivered by the court.

A plaintiff who successfully obtains a declaration of falsity should be awarded costs on an indemnity basis unless the court determines otherwise.

A plaintiff who successfully seeks a declaration may go on to recover damages for economic loss in the same proceedings, but only after the declaration has been made. All affirmative defences should apply to that part of the proceedings in which economic loss is claimed.

Recommendation 21 (page 126)

Section 47 of the Defamation Act 1974 should be repealed.

Recommendation 22 (page 135)

All defendants should be able to rely on a published correction as a defence to a claim for non-economic loss where the correction was requested by the plaintiff. A requested correction is one which complies in all respects with a request by the plaintiff for a correction or, alternatively, one which complies with Recommendations 23, 25, 26 and 27.

A plaintiff seeking a correction must do so in writing prior to commencing proceedings and identify the publication complained of; the false and defamatory imputations said to arise from it; the facts, if any, which demonstrate falsity; and any special facts which give rise to a defamatory meaning other than the express language of the publication.

The court should be given power to determine any questions which concern the steps which must be taken to comply with the requested corrections procedure and which are referred to it by agreement of the parties.

The correction must be prompt. For publications which are published on at least five days of each week, the correction must be published within seven days of a fully documented request complying with Recommendation 23. In other cases, the correction should be published in the next edition so far as this is practicable, or at such other time as the parties agree.

Recommendation 26 (page 140)

The correction must be adequate: it must be published in the same place and manner as the original defamatory statement, or else calculated to reach substantially the same audience. It must either correct the imputation, preferably by stating the facts rather than simply stating that the original imputation was false; or disclaim any intention to convey a secondary meaning or assert its truth.

Recommendation 27 (page 141)

Defendants who agree to publish a prompt and adequate correction should also pay the plaintiff’s reasonable costs.

The defendant’s publication of a prompt and adequate correction does not bar a claim for economic loss.

Recommendation 29 (page 144)

Section 43(1)(d) of the Defamation Act 1974 (NSW) should be repealed.

There should be a clearly enunciated policy consistently applied to determine the statutory grant of absolute privilege to bodies dealing with investigation, reporting and discipline.

The clauses of Schedule 1, Part 1, of the Defamation Bill 1992, conferring absolute privilege on a wider class of Parliamentary proceedings and papers should be adopted.

The Defamation Act 1974 should be amended so that, as far as is possible, all instances in which absolute privilege is conferred by legislation are also recorded in the Act in a consistent form. The legislation should clearly indicate the scope of the protection given in each case.

Recommendation 33 (page 184)

The drafting format of the Defamation Bill 1992 (Schedule 1 - Absolute Privilege) should be adopted.

Recommendation 34 (page 193)

There should be a clearly enunciated policy consistently applied to determine when protected report status is conferred.

The drafting format of the Defamation Bill for Schedule 2 — Protected Reports of Proceedings should be adopted.

Recommendation 36 (page 195)

The Defamation Act 1974 Schedule 2, “Proceedings of Public Concern”, should be amended to include proceedings in public of a local council, board, or other authority constituted for public purposes under the legislation of the Commonwealth, a State or a Territory, so far as the proceedings relate to a matter of public interest.

The limitation period for defamation actions (other than a declaration of falsity) should be shortened to one year from the date of publication, the court having a power to extend the period as the interests of justice require to a maximum of three years from the date of publication.

Mediation in defamation matters should be offered by the Supreme Court in accordance with the provisions of the Supreme Court Act 1970 (NSW) as amended by the Courts (Mediation and Evaluation) Amendment Act 1994 (NSW).