Further proposed defamation reforms may soon bring forth another set of significant changes to Australian defamation law. With an expected commencement date of 1 January 2024, the proposed amendments to the Defamation Act 2005 come shortly after sweeping reforms that commenced on 1 July 2021.
Welcomed by the Council of Attorney-Generals in July 2022, the proposed reforms aim to update defamation laws to accommodate for rapid technological evolution, particularly the rise of social media and internet search engines.
The Defamation Act 2005, which applies, in substantially similar form, in all states and territories across Australia, was passed almost 18 years ago and did not cater for the rapid growth of the internet and social media. The 2021 reforms did not specifically address this either.
Previous Case Law
The proposed reforms arise on the back of two landmark cases at the High Court of Australia.
In Fairfax Media Publications Pty Ltd v Voller & Ors [2021] HCA 27, the Court found that media corporations could be liable in defamation for third-party comments on media publications if they ‘intentionally facilitate and encourage’ those comments.
On the other hand, Google LLC v Defteros [2022] HCA 27, found that a search engine is not liable for allegedly defamatory content by merely listing it in search engine results.
The differing positions taken by the High Court, emphasised the need to have clear laws surrounding the liability of internet service providers, social media platforms, search engines and other ‘digital intermediaries’ in defamation. As such, the proposed defamation reforms aim to clarify the rights and obligations of digital intermediaries in this regard, while also protecting individuals from reputational damage, or otherwise mitigating that damage.
Key Changes
In the proposed reforms, intermediaries will be granted a new ‘innocent dissemination’ defence which aims to protect intermediaries, particularly search engines, that unintentionally and/or unwittingly host the defamatory material.
This innocent dissemination defence will only be open to the intermediary if it hosted a mechanism whereby a complainant could submit a complaints notice to that intermediary, and if that intermediary correctly complied with that mechanism. Correct compliance means the intermediary must identify the content creator of the defamatory material to the complainant or offer the complainant ‘prevention steps’. These are steps to remove, block, disable or otherwise prevent access by some or all persons involved in the publication of the defamatory content.
Intermediaries will also be able to make an offer of amends to a complainant or an aggrieved person, by offering prevention steps, rather than offering other traditional remedies such as apologising or clarification.
The Future of Defamation Law
The proposed reforms will update the increasingly complex practise of defamation law, and certainly have a profound impact on all stakeholders.
BlackBay Lawyers will closely monitor the efficacy of the proposed reforms once they commence.
