Australia's defamation laws face further changes in addition to the reforms made to the Defamation Act, which commenced on 1 July 2021. We explain those earlier legislative developments here.

The next stage of development focuses on modernising Australia's defamation laws to align with current social media and internet usage, following landmark High Court decisions in Fairfax Media Publications Pty Ltd v Voller & ors [2021] HCA 27 (Fairfax v Voller) and Google LLC v Defteros [2022] HCA 27 (Defteros).

This article identifies what we know so far about the proposed reforms and discusses what claimants and practitioners may expect to see in defamation law in 2023 and beyond.

Proposal history

A national framework for model defamation provisions was enacted in 2005 (Model Provisions), with each state and territory responsible for implementing the Model Provisions.

Stage 1 of the amendments to the Model Provisions were approved by the former Council of Attorneys-General on 27 July 2020 and implemented on and from 1 July 2021. The Stage 1 amendments to the Model Provisions introduced, among other things, new statutory defences and an additional, mandatory "serious harm" element for defamation actions.

The Stage 2 review of the Model Provisions commenced with a discussion paper released on 31 March 2021, seeking submissions on issues to be canvassed in the second stage reforms. A draft version of the Stage 2 Part A Model Defamation Amendment Provisions (Stage 2 Provisions) and an accompanying Background Paper were released for public consultation on 12 August 2022.

On 9 December 2022, the Stage 2 Provisions were approved in principle by the Standing Council of Attorneys-General. The anticipated commencement date for the Stage 2 Provisions, that have been agreed in principle so far, is 1 January 2024.

Proposed reforms

The proposed reforms must strike a balance between freedom of expression and protecting individuals from reputational damage. Additionally, the proposed reforms will seek to bring defamation laws up to date with contemporary social media and internet usage. Prior to the reforms which took effect on 1 July 2021, the last substantial development was the enactment of the Model Provisions in 2005, long before the internet became the global online universe we know in 2023.

The primary focus of the Stage 2 Provisions is the involvement and liability of third-party internet intermediaries in defamation claims. For example, in Fairfax v Voller, media corporations were found liable as publishers in defamation for comments written by third parties (i.e. 'originators') on Facebook pages hosted by the media corporations. Conversely, in Defteros, Google was not liable for allegedly defamatory content in search engine results produced by Google because Google did not invite, encourage or facilitate engagement with, or distribution of, defamatory publications penned by third parties.

Hence, the Stage 2 Provisions aim to clarify the rights and obligations of internet intermediaries such as Facebook page hosts and search engine providers in circumstances where those entities are not the originators of the content. In doing so, the Stage 2 Provisions aim to:

  • provide statutory guidance and clarity for the common law tests for publication;
  • assist internet intermediaries to avoid liability as publishers for content they did not create and for which they cannot always or easily verify the source or truthfulness;
  • ensure remedies remain available for claimants where actual, serious harm to reputation is occasioned by defamatory publications.

The substantive changes to the Model Provisions in the Stage 2 Provisions include:

Change

Details

Exemptions from liability
  • conditional, statutory exemptions from defamation liability for mere conduits of publications (i.e. internet caching and storage service providers);
  • conditional, statutory exemptions for defamation liability for standard search engine functions (not including paid content advertising, snippets) - search engine provider must be unable to remove content, have no interest in publication or relationship with originator.

Additional defences and simple complaints process
  • safe harbour (automatic) defence for internet intermediaries subject to simple complaints notice process for removal of content - complainant must have sufficient information about content originator to issue concerns notice/commence proceedings in defamation. This defence would be defeated by malice in provision of online service in matter publication;
  • additional innocent dissemination defence specifically for internet intermediaries subject to simple complaints notice process for removal of content;
  • internet intermediary allowed fourteen-day period to prevent access to matter from receipt of complaints notice in order to rely on innocent dissemination defence.

Offers to make amends
  • changes to allow internet intermediaries to make offers to make amends not including apology, clarification or correction (where such actions are not possible for internet intermediaries).

Relationship with other legislative instruments
  • carve outs/clarification in Online Safety Act 2021 (Cth), which provides immunity from statute, common law and equity for some internet hosting providers, necessary for purposes of defamation law.

Court powers
  • Courts to be granted powers to make orders (after notice in advance) against non-parties to prevent access to defamatory materials online;
  • as information regarding content originators is relevant to the applicability of proposed additional defences for internet intermediaries, Courts must give greater consideration to privacy, safety and public interest concerns before granting preliminary discovery to claimants against internet intermediaries.

What to expect in 2023

The Stage 2 Provisions are yet another interesting development in the complex matrix of defamation laws. No doubt, the proposed Stage 2 reforms will further revolutionise defamation claims in Australia, both in how claims are commenced and how they are adjudicated by the Courts.

Some of the consequences of the Stage 2 Provisions we anticipate for 2023 include:

  1. Less claims and recoveries - preventing claims against internet/media corporations with huge financial resources may give claimants reason for pause before commencing proceedings against natural person originators, against whom recoveries may be less certain.
  2. Changes to internet policies - to maximise reliance on the new defences in the Stage 2 Provisions, internet companies such as Facebook, Twitter, LinkedIn, Instagram and Google will likely change their policies to more easily prevent access to content and allow complainants to submit content complaints.
  3. Automation - search engine providers will likely implement automated tools to produce organic search results for the best chance to rely on the new statutory exemptions from liability. The disadvantage of doing so will be that search engine providers who gain financial benefit from advertised search results will be at greater risk for defamation liability and will ultimately need to balance risks with rewards.
  4. Costs/damages - as Courts may be able to make orders against non-party internet intermediaries to remove, block or disable access to online material, we anticipate disputes arising between complainants and internet intermediaries for the costs and any damages suffered by the non-party arising from compliance with such orders. Additionally, privacy concerns may be ventilated where content originators' identifying information is granted to complainants by preliminary discovery orders.
  5. Alternate dispute resolution - in light of the foregoing and the increased pressure for complainants and originators to resolve disputes between themselves without the involvement of third party intermediaries, it is likely that parties will seek to resolve disputes by alternate and often informal means (through correspondence, informal settlement conferences and other commercial negotiations).

Part B of the Stage 2 Provisions is still in development and primarily relates to defamation issues for reports of illegal conduct to police and statutory bodies.

Clearly, the already complex practice area of defamation is about to become more technically challenging. We are experts in defamation law and are available to assist you with defamation and privacy concerns.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.