Review of Model Defamation Provisions

Standing Council of Attorneys-General, Stage 2 Review of the Model Defamation Provisions (MDPs)

The amendments to the MDPs made at the conclusion of the Stage 2 Review of the MDPs have now been enacted in NSW and the ACT. They commenced in NSW and the ACT on 1 July 2024.

Part A (internet intermediary liability for third-party content)

Part A of the Stage 2 Review of the MDPs concerned internet intermediary liability in defamation for the publication of third-party content. New South Wales led the Part A work.

On 22 September 2023, the Standing Council of Attorneys-General approved by majority the final amendments for Part A, subject to some jurisdictions’ Cabinet processes where necessary. Jurisdictions in the majority (all jurisdictions except South Australia) agreed they will use best endeavours to enact the Part A amendments to the MDPs for commencement on 1 July 2024. The public communique for the meeting can be viewed here.

The amendments include:

• Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results
• A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B)
• A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online
• A requirement that courts consider balancing factors when making preliminary discovery orders
• Updates to the mandatory requirements for an offer to make amends for online publications
• Additional electronic means by which documents may be given or served

The Part A amendments are available on the Australasian Parliamentary Counsel’s Committee website.

In addition to the Part A amendments to the MDPs, the Australian Government will prepare an exemption to state and territory defamation laws from section 235(1) of the Online Safety Act 2021 (Cth).

Part B (absolute privilege)

Part B of the Stage 2 Review of the MDPs was led by Victoria. It considered whether absolute privilege should be extended to cover reports of conduct such as sexual harassment and sexual assault to police and other complaints-handling bodies.

On 22 September 2023, the Standing Council of Attorneys-General approved the final reforms for Part B, subject to some jurisdictions’ Cabinet processes where necessary. The Part B amendments to the MDPs extend absolute privilege to matter published to police. The amendments are available on the Australasian Parliamentary Counsel’s Committee website. Guiding principles will be used by jurisdictions to determine whether to extend absolute privilege to matter published to a complaints-handling body for the purposes of the Part B reforms.

Further information on the Part B reforms can be found on the Engage Victoria website.

Part A exposure draft amendments to the MDPs

On 12 August 2022, the Meeting of Attorneys-General (as it was then) agreed to release for public consultation the draft Part A Model Defamation Amendment Provisions (PDF, 256.4 KB) and an accompanying Background Paper (PDF, 749.6 KB). A Summary Paper (PDF, 229.7 KB) is also available for ease of reference – it is a short extract of the Background Paper. 

The due date for submissions was Friday 9 September 2022.

The public submissions are available to review here. 

On 31 March 2021, Attorneys-General agreed to release a discussion paper for the Stage 2 Review.