The Council of Attorneys-General Defamation Work Party (Council) was established to review and make recommendations on modernising defamation law – a review that is needed in the wake of recent (and, depending on your point of view, controversial) Australian caselaw which confirmed that owners of social media pages could be held liable for defamatory content posted by their users on their social media websites.
In 2023, the Council released the Model Defamation Amendment (Digital Intermediaries) Provisions 2023 (Provisions), which consider the relationship between the “digital intermediaries” (being a person who provides or administers the online services by means of which the matter is published) and the content hosted; and introduce an exemption from liability for “passive” service providers such as caching services, conduit services and search engines (in certain circumstances). The Provisions also create a defence for other digital intermediates, provided the entity implements an accessible complaints mechanism; where “reasonable access prevention steps” were taken to block or remove access to the content subject of a defamation claim; and where the online service was not created for the purpose of encouraging users to post defamatory comments.
A digital intermediary should be aware of the incoming Provisions and the steps that should be taken to avail itself of any defences if defamatory matter is published on one of its online services.
On 22 September 2023, the Standing Council of Attorneys-General approved in principle these amendments and they are expected to be implemented by 1 July 2024.
*Information is accurate up to 27 November 2023
