Following the reforms to the Defamation Act1 commencing on 1 July 2021, there are further proposed developments for Australia's defamation laws in the works for 2023 and 2024.

The main development will focus on updating the existing defamation laws to keep up with technological advancement, particularly in relation to social media.

Between 2021 and 2022, the following two landmark cases were heard before the High Court of Australia:

  1. Fairfax Media Publications Pty Ltd v Voller & Ors 2 (Fairfax v Voller)

  2. In Fairfax v Voller, media corporations were found liable as publishers in defamation for comments written by third parties on Facebook pages hosted by the media corporations as the Court found that the media corporations had intentionally facilitated and encouraged third-party comments on their Facebook pages.

  1. Google LLC v Defteros 3 (Google v Defteros)

  2. In Google v 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".

Both of these cases illustrate the need for the Court to identify the responsibilities of internet hosts and social media platforms, whilst also taking into consideration the balance between freedom of expression and protection against reputational harm.

Over the next twelve months, the reforms will aim to clarify the rights and obligations of internet hosts and facilitators who are not the original publishers of alleged defamatory content.

Some of the changes will include:

  1. Exemptions from liability – this will cover intermediaries (such as caching and storage services) as long as the intermediary does not encourage, edit, or promote the defamatory material.
  2. Additional Defences – implementation of additional "innocent dissemination" defences specifically for internet intermediaries.
  3. Offers to make amends – amendments to enable internet intermediaries to make offers to amend.

As the technology continues to develop, it is necessary for the legislation to remain up to date. While the proposed reforms to the defamation laws will help to ensure adequate protection for third party internet hosts and providers, this will not be at the expense of protecting individuals who have suffered reputational damage.

Footnotes

1 Defamation Act (NSW) 2005

2 Fairfax Media Publications Pty Ltd v Voller & Ors [2021] HCA 27

3 Google LLC v Defteros [2022] HCA 27

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