Law reforms now approved
On 22 September 2023, the Attorneys-General of all Australian jurisdictions (except South Australia) approved the Stage 2 Part A and Part B amendments to Australia’s uniform defamation laws. At this stage, these amendments are due to commence on 1 July 2024.
The Stage 2 reforms follow the Stage 1 reforms, which took effect in almost all Australian states and territories in July 2021. As we reported at the time, the Stage 1 reforms included the introduction of a new “serious harm” threshold, mandatory Concerns Notices, and new defences relating to matters of public interest and matters published in academic or scientific journals.
What are the amendments about?
Part A of the Stage 2 reforms (the Reforms) target the publication of “digital matters”, which is a new concept introduced by the Reforms1. Practically speaking, this means the Reforms may be relevant to any situation where a person publishes defamatory material on the internet, including on websites, social media platforms, or where that material appears in a search engine’s results.
The Stage 2 Reforms have been influenced by the decision of the High Court in Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346 (Voller), where it was held that media companies were the publishers of defamatory comments posted by members of the public on their Facebook pages in response to news stories those companies posted about Dylan Voller.
Following Voller, many stakeholders were concerned about the potential consequences of the decision. These concerns included that it might prohibit free speech because it requires the administrators of online platforms to remove potential defamatory material to avoid liability, and it is not fair to hold an administrator liable for defamatory material posted by a third-party that they are unaware of.
The Reforms essentially dilute the effect of Voller and have been designed to achieve a better balance between protecting an individual’s reputation and not unreasonably limiting freedom of expression in situations where defamatory material is published on online platforms2. The mechanisms introduced by Part A of the Stage 2 Reforms are set out in greater detail below.
What’s changing?
The Reforms introduce a range of changes which have been developed to comprehensively respond to the potential liability of media companies and other users of online platforms for content posted to those platforms by third parties.
New legal concept of “digital intermediaries”
The newly defined term digital intermediaries is central to the Reforms. A “digital intermediary” is a person or entity who provides or administers the online platform on which defamatory material is published, but who is not the original author or poster of that material. The most obvious examples of digital intermediaries include social media platforms such as Facebook and Instagram. On a smaller scale, the definition could also capture any business that runs a website.
Statutory exemptions from liability – passive digital intermediaries & search engine providers
The Reforms provide for two exemptions from liability for defamation, which target two narrow classes of digital intermediaries (being “passive” service providers and “search engine providers”).
Firstly, the amendments create an exemption from liability for the publication of defamatory material by “passive service providers” who provide caching services, conduit services or storage services (or a combination of those services). Examples of passive service providers include cloud storage providers or internet service providers. However, this exemption is only available if the passive service provider can establish each of the following elements:
- the service provider’s role in the publication was limited to providing the service in the first instance; and
- the service provider did not take an active role in the publication of the defamatory material, for example, by initiating, promoting or editing the matter.
This exemption is therefore limited to providers whose services typically involving passive, rather than active, participation in the publication of digital material.
Secondly, the amendments create an exemption from liability for automatically generated search results that contain defamatory material, or which contain a hyperlink to defamatory material that appears on third party websites.
This exemption therefore confirms the decision of the majority in the Google LLC v Defteros [2022] HCA 27, where it was held that a search engine provider is generally not liable for search results that contain hyperlinks to defamatory material if the results are generated organically by the user of the search engine.
This exemption does not apply where the search engine provider promotes or prioritises search results in exchange for payment or other benefit given to the provider by a third party (ie sponsored search results).
New defence for digital intermediaries
The Reforms introduce a new defence to the publication of a defamatory material that digital intermediaries can rely on provided that they:
- have an “accessible complaints mechanism” (eg an email address that complaints can be sent to); and
- received a written complaint which meets the statutory requirements and took “reasonable access prevention steps” (if available) either before the written complaint was received or within 7 days of receipt.
“Access prevention steps” that will satisfy the defence include removing the content and blocking people from being able to access the content.
A digital intermediary is only required to take access prevention steps where the person who claims they have been defamed has complied with the complaints process prescribed by the new amendments. If that process has not been complied with, then the digital intermediary only needs to establish that it had an accessible complaints mechanism in place at the time of the allegedly defamatory matter’s publication, which could have been used.
Power to order digital intermediaries to remove defamatory matters
Finally, the Reforms give the Court the power to order digital intermediaries which are not parties to proceedings to take access prevention (or other) steps which the Court considers are necessary to prevent or limit defamatory material from being published or republished. This power is enlivened in circumstances where a person has brought a successful defamation action against another person, or where the Court has granted an injunction against a person which prevents them from republishing or continuing to publish defamatory material.
The Reforms provide that the Court is only able to make a final order of this kind after providing the relevant digital intermediary with an opportunity to put forward a view to the Court as to whether the order should be made.
What’s next?
The Standing Council of Attorneys-General has agreed to aim to enact the Reforms in each state and territory within Australia (at this stage, excluding South Australia) for commencement on 1 July 2024.
Subject to some exceptions, this means that the new exemptions and defence to liability will only be available to digital intermediaries in proceedings where publication of alleged defamatory material occurs after 1 July 2024.
If you require advice in respect of the implications the Reforms may have on your business, or need any assistance with defamation issues, please contact a member of our team for further information on how we can assist you.
This article was written by Caitlin Surman, Special Counsel and Jonathan Parsalidis, Law Graduate, and reviewed by Peter Campbell, Partner.
1Model Defamation Amendment (Digital Intermediaries) Provisions 2023, available at: Model Defamation Amendment (Digital Intermediaries) Provisions 2023 (pcc.gov.au) (Model Amendment Provisions)
2SCAG Communiqué dated 9 December 2022, page 4; SCAG Communiqué dated 22 September 2023, page 3, available at: Standing Council of Attorneys-General communiqués | Attorney-General’s Department (ag.gov.au)
