From 1 July 2024, new defamation laws came into effect in NSW and the ACT which introduce new defences to the publication of defamatory material. This follows a suite of reforms that came into effect in most Australian jurisdictions on 1 July 2021, including the serious harm test and the new public interest defence (s.29A of the Defamation Act 2005 (NSW) (the Act)) which BlackBay Lawyers has previously written about here.
The changes that come into effect today will, amongst other things:
Protect administrators of Facebook pages and other online forums against defamation claims arising from the publication of defamatory posts by other users;
Exempt search engines such as Google from liability for defamation arising from non-sponsored links to websites they did not create; and
Provide greater protections to people making reports to police, including sexual assault complainants.
New defence for Facebook administrators
To avail themselves of the new defence under s.31A of the Act, Facebook administrators and other “digital intermediaries” must have in place an accessible complaints mechanism for the plaintiff to use and take steps within 7 days to prevent access to the defamatory post. The defence can only be defeated if a plaintiff can show that the digital intermediary “was actuated by malice in establishing or providing the online service by means of which the digital matter was published” (s.31A(4) of the Act). The new defence is a response to the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller). In Voller, the High Court rejected the argument made by the media company appellants that they should not be liable for defamatory posts made by third parties on Facebook pages that they controlled.
Exemption for search engines providers
In Google LLC v Defteros [2022] HCA 27, the High Court found by a majority that Google was not liable as a publisher for including within its search results a hyperlink to a defamatory article. But if a search result or hyperlink contains material which would direct, entice, or encourage someone to click on the link, such as a “sponsored link”, the company providing such a link may be deemed to be a publisher of that underlying material.
In Duffy v Google [2023] SASC 13 the Supreme Court of South Australia confirmed that search engines and other online publishers of third-party material can be liable as secondary publishers of defamatory content when they are put on notice and fail to remove defamatory material such as snippets, hyperlinks or defamatory extracts.
The new exemption is intended to cover both search engine results that simply link to defamatory material and those which contain defamatory content in the search result. However, the exemption, according to NSW Solicitor-General Michael Sexton SC:
“is limited to situations where the search engine provider has provided an automated process for the user to generate the result or the hyperlink to the defamatory material. So, it would not cover, for example, defamatory content that is provided by the search engine provider to the user through an autocomplete suggested search term, or if the digital intermediary promotes or prioritises the search result or hyperlink because of a payment or other benefit derived from that action”.
Extension of the defence of absolute privilege to defamatory publications made to police
Complaints made to police were previously protected by the defence of qualified privilege. It is referred to as “qualified” because it is only protected if the publisher is not actuated by malice and does not use the occasion for an improper purpose. Although the defence offered broad protection to defendants from liability in defamation in respect of publications made to police, in one case in the District Court of Queensland in 2022, a defendant was found liable for defamation after complaining to a police officer about the conduct of a former lover towards her, which included unsolicited phone calls and text messages; interfering with her employment; and threatening to interfere with her university admission unless she responded to his calls and text messages. The defendant was ordered to pay $10,000 in damages but more than $500,000 in costs, bankrupting her in the process.
In November last year, BlackBay Lawyers represented the defendant’s trustee in bankruptcy in the Queensland Court of Appeal: Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258.
Judgment was delivered in our client’s favour on 15 December 2023. The Court of Appeal found that the defendant’s complaint was protected by common law qualified privilege and that she had not been malicious with the result that the trial result was overturned and costs were ordered in her favour.
S. 27(2)(b1) of the Act now provides a complete immunity from lawsuits brought in respect of defamatory publications made to police, regardless of whether the publisher was unreasonable in their conduct or was actuated by malice. This is a significant change and means that a person who makes a knowingly false complaint to police for the sole purpose of defaming someone will be protected from liability in defamation. Penalties for making false reports to the police remain in place (see e.g. s 307B of the Crimes Act 1900 (NSW)). Proponents of the change argued that extending the defence of absolute privilege to complaints to police would remove a barrier to reporting.
For further information about the legislative updates to the Act, or for general advice about defamation, please do not hesitate to contact BlackBay Lawyers.
