Modernising defamation law for a digital world

25 October 2023

The NSW Labor Government has updated NSW’s defamation laws for the modern, online world.

Key amendments in the Defamation Amendment Bill 2023 address the liability of digital intermediaries in defamation for the publication of third-party content online. These amendments implement the Part A reforms, led by NSW, that the Standing Council of Attorneys General approved by majority, following the Stage 2 Review of the Model Defamation Provisions.

Digital intermediaries include internet service providers, content hosts, search engines, review websites and social media platforms. Organisations and individuals who use online platforms to host forums that invite third-party comments, known as ‘forum administrators,’ are also digital intermediaries.

The key Part A reforms include:

• two conditional statutory exemptions from defamation liability for a narrow group of digital intermediaries, including search engines in relation to organic search results (non-sponsored search results)
• a new innocent dissemination defence for digital intermediaries, subject to a simple complaints process
• empowering courts to order digital intermediaries to prevent access to defamatory content online, even when they are not parties to defamation proceedings
• requiring courts to consider safety, privacy and the public interest when making orders against digital intermediaries to provide the identity or contact details of a poster of online content

Australia has had uniform defamation laws since 2005. Stage 1 amendments to the Model Defamation Provisions commenced in NSW and most other jurisdictions in 2021.

The Stage 2, Part A reforms are intended to address issues that have been the subject of long and costly disputes in recent years and respond to the decision of the High Court in Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27. This case involved several media companies, which were found to be publishers of comments posted on their social media pages by third-party users responding to their content. The purpose of the reforms is to make the law clearer and more certain for both plaintiffs and digital intermediaries.

The Bill will also extend the defence of absolute privilege to matter published to police (for example, a sexual assault complaint made to police). This implements Part B of the Stage 2 Review of the Model Defamation Provisions.

The new legislation is expected to take effect from 1 July 2024.

Read the full Bill:  https://www.parliament.nsw.gov.au/bill/files/18503/Passed%20by%20both%20Houses.pdf

For more information on the Stage 2 Review of the Model Defamation Provisions:  https://dcj.nsw.gov.au/about-us/engage-with-us/past-consultations/statutory-reviews/review-model-defamation-provisions.html

NSW Attorney General Michael Daley said:

“Our current defamation laws were drawn up in a pre-digital world where publishing was mainly a professional activity subject to rigorous editorial standards. But in this era of electronic communications, anyone with a device connected to the internet can publish to the world at large, unchecked.”

“It is crucial that these laws strike a better balance between protecting reputations while not unreasonably limiting freedom of expression in circumstances where third parties publish defamatory matter via digital intermediaries.”

“It is essential that freedom of speech is protected in drawing up these new laws. This is fundamental for a free and open democracy. At the same time, people must also have the right to take action if their reputation has been harmed.”

“Our laws on this must be clear, consistent and fit for purpose in the evolving online world.”