Australia: Defamation law reforms on the horizon for digital intermediaries
On 22 September 2023, the Standing Council of Attorneys-General (SCAG) approved law reforms concerning digital intermediary liability in defamation for the publication of third-party defamatory content (among other things) as part of Part A of the Stage 2 Review of the Model Defamation Provisions (MDPs).
In short, the Part A reforms include (among other things):
- two new conditional exemptions from liability for defamation targeting narrow classes of digital intermediaries – specifically:
- passive intermediaries in relation to publication of digital matter using a ‘caching service’, ‘conduit service’ or ‘storage service’ (each being a defined term in the draft legislation); and
- ‘search engine providers’ in relation to publication of automatically generated ‘search results’ or digital matter to which automatically generated search results provide a hyperlink (but excluding sponsored search results and autocomplete predictive text suggestions);
- a requirement that judicial officers in defamation proceedings determine whether a defendant has a digital intermediary exemption as soon as practicable before the trial for the proceedings commences unless satisfied that there are good reasons to postpone the determination to a later stage of the proceedings. Judicial officers would be empowered to make appropriate orders concerning the determination of this issue, including dismissing the defamation proceedings if satisfied that the exemption is established;
- a new defence for digital intermediaries in relation to the publication of defamatory digital matter provided that the intermediary defendant proves they had, at the time of publication, an accessible complaints mechanism for the plaintiff to use, and took reasonable access prevention steps (if available) before, or within 7 days after, the complaint was made;
- conferring a power on the courts to make orders, in certain defamation proceedings, requiring digital intermediaries who are non-parties to take access prevention steps or other steps the court considers necessary in the circumstances; and
- a requirement that courts, before making preliminary discovery orders for the purpose of identifying and locating posters of digital matter, take into account the objects of the Defamation Act and privacy, safety or other public interest matters that may arise if the order is made.
SCAG also approved the Stage 2, Part B reforms which extend the defence of absolute privilege to publications of defamatory matter to officials of Australian police forces or services while they are acting in their official capacities.
A majority of States and Territories, with the exception of South Australia, have agreed to use best endeavours to enact the Stage 2, Part A and Part B reforms by 1 July 2024.
The below diagram illustrates the practical effect of the new exemptions for digital intermediaries as well as the new defence.