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How new defamation laws will change the game
New defamation reforms, which would cover social media and search engines, have been agreed to in principle by all nine attorneys-general across the country. Here’s what such reform means.
Lauren Croft
At their final meeting for 2022, Australia’s nine attorneys-general endorsed, in principle, reforms to modernise the nation’s defamation laws on search engines and social media platforms.
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The Standing Council of Attorneys-General agreed to enact amendments in each jurisdiction to address the extent to which internet intermediaries are liable for reputation-damaging material published by third-party users online, in new reforms which would commence from 1 January 2024.
NSW Attorney-General Mark Speakman said that the proposed reforms would “substantially upgrade Australia’s uniform defamation laws, which were first drafted nearly two decades ago before the boom in social media”.
“Online technology means reputations can be irreparably damaged in a matter of keystrokes,” he said.
“That’s why NSW has been leading this work and consulting on these reforms to strike a better balance between protecting reputations and promoting freedom of speech online, in circumstances where third parties publish defamatory matter via internet intermediaries.”
Whilst the specific drafting of the amendments is yet to be released, Thomson Geer partner Marlia Saunders said that their intended effect is to “encourage complainants to pursue the originator of defamatory material rather than certain internet intermediaries”.
“In a digital context, the reforms are important because traditional concepts of publication in defamation law were developed before the internet was conceived of. This has led to counterintuitive results in online defamation cases where parties who were not the originators of content and had limited ability to ascertain its truth or falsity have been held to be liable. The prime example of this was the Voller case, where a majority of the High Court found that media companies were liable for defamatory comments posted by third parties on their Facebook pages.
“The amendments will introduce a new innocent dissemination defence for internet intermediaries which is subject to a simple complaints process. This will hopefully provide increased certainty for intermediaries as compared to the existing defence in section 32 of the act, which does not deal with the required contents of a complaint in order for it to be effective and does not provide for the length of time for access prevention steps to be taken before liability kicks in,” she said.
“The amendments will also introduce an exemption from defamation liability for search engines in relation to organic search results, which will reverse the position under common law under which Google has been held to be liable for ‘snippets’ in its search results once it is on notice that they may be defamatory. Courts will also be given increased powers to order that non-party internet intermediaries, including search engines, take steps to prevent access to online content after it has been determined that the content is in fact defamatory and indefensible.”
The reforms also include a new “innocent dissemination” defence for internet intermediaries, subject to a simple complaints process. This means that once the internet intermediary has received a complaint, it must take reasonable steps to remove or otherwise prevent access to the matter within a specific period in order to be able to rely on the defence.
From the time the laws come into effect in 2024, Ms Saunders advised lawyers to get familiar with the complaints process, including “what information is required to be included in a complaints notice in order for it to be effective and the applicable timeframes for a response”.
“Lawyers should also familiarise themselves with the changes to the mandatory requirements for offers to make amends, which are intended to make it easier for internet intermediaries to make offers in circumstances where they are unable to publish a correction or clarification and can instead offer to take down or restrict access to the defamatory content,” she added.
These reforms were the product of “extensive consultation”, including a public exposure draft released in August 2022, which received 36 submissions, and a stakeholder roundtable.
“We thank all stakeholders, including the technology sector, media companies, lawyers and other individuals, as well as the NSW Defamation Expert Panel (with judicial, other legal and academic members), for their insightful contributions to this significant work,” Mr Speakman added.
