On 1 July 2024, the Defamation Amendment Act 2023 (NSW) (‘the Act’) will implement nationally agreed changes to the law of defamation.

A major focus of the most recent review of the Model Defamation Provisions (‘MDPs’) (known as the ‘Stage Two’ reforms) has been on the liability of internet intermediaries for publication of third-party content. For convenience, this article will refer to the amendments made to the MDPs by reference to the Defamation Act 2005 (NSW) (‘Defamation Act’).

The Act effects six key reforms in the online defamation space:¹

• a conditional exemption from defamation liability for conduit, caching and storage services and search engines in relation to organic searches;

• creation of an innocent dissemination defence for digital intermediaries, subject to a simple complaints process;

• mandatory requirements for an offer to make amends for online publishers;

• new powers for courts to order non-party digital intermediaries to prevent access to defamatory material;

• the identification of the factors courts must consider when making preliminary discovery orders against digital intermediaries; and

• expanded electronic methods of serving notices.

The role of internet intermediaries in defamation, and particularly their responsibility as publishers of online defamatory material, was the focus of two recent High Court decisions: Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (‘Voller’) and Google LLC V Defteros [2022] HCA 27 (‘Defteros’).

Ultimately, the amendments seek to strike a better balance between protecting reputation and not unreasonably limiting freedom of expression in the various circumstances where third parties may publish defamatory matter via digital intermediaries.²

Digital intermediary

The Act defines a ‘digital intermediary’ as a person who provides or administers the online service by means of which a matter is published, other than an author, originator or poster of a matter. This definition is broad and captures entities and persons such as internet service providers, internet content hosts, social media platforms, search engines, review websites and (particularly relevant having regard to the High Court’s majority decision in Voller) forum administrators.³

Exemption for search engines and ‘mere conduits’

The Act creates two statutory exemptions from liability for defamation for a digital intermediary where:

• its role in publication is limited to providing a caching service, conduit service, or storage service, and it otherwise did not take any active role in initiating, editing or promoting the digital matter. This exemption protects, for example, internet service providers, cloudbased servers, and other ‘mere conduits’ that take a passive role in the publication of digital matter;⁴ or

• it is a search engine provider, and its role in the publication of search results (or digital matter to which the search results provide hyperlinks) is limited to providing an automated process for a user to generate those search results.⁵

While the exemption for search engine providers makes it clear that there is no liability for automatically generated defamatory search results, the Act makes equally clear that this exemption does not apply to search results (or digital matter to which the search results provide hyperlinks) which are sponsored or prioritised because of payment to the search engine provider.⁶ The policy rationale for the exemption is that search engine providers have no interest, with the exception of sponsored search results, in either the search results or the specific content to which search results provide access by way of a hyperlink. This exemption aligns Australian law with the approach taken to search engines in other jurisdictions, particularly the United Kingdom.⁷ The Act leaves open the question undecided by the High Court in Defteros as to whether a search engine provider at common law is a publisher of matter accessed by sponsored search results.

New defence for digital intermediaries

The Act creates a new defence for digital intermediaries that take reasonable steps to remove, or otherwise prevent access to, defamatory digital matter posted by a third party (a ‘poster’) within seven days of receiving a written complaint under the Defamation Act.⁸

To succeed on the new defence, a defendant must prove that:

(a) it was a digital intermediary in relation to the publication;

(b) at the time of the publication, it had an ‘accessible complaints mechanism’ for the plaintiff to use; and

(c) if the plaintiff gave the defendant a written complaint under the Act, reasonable ‘access prevention steps’ were taken within seven days of the plaintiff’s written complaint such as to remove, block or prevent access (for example, removing a post in an online forum or blocking access to a web page).

An ‘accessible complaints mechanism’ permits a plaintiff to complain about digital matter by using, for example, a readily accessible email address, direct messaging service, or web page where a complaint can be uploaded. A complaints process that is difficult to find or follow is unlikely to help establish the defence.

Notably, a defendant can rely on the new defence without taking reasonable access prevention steps if the plaintiff failed to use the digital intermediary’s accessible complaints mechanism, or attempted to use it but failed to comply with the requirements of making a written complaint under the Act.

A written complaint does not need to be in any particular format, but it needs to include basic information about the plaintiff’s name, the digital matter, and where it can be located, and a statement that the plaintiff considers the matter to be defamatory. An objective test focussed on a reasonable person in the digital intermediary’s circumstances will be applied to determine whether the digital intermediary to whom the complaint was given was made aware of the basic information.

The defence is only defeated if the plaintiff establishes that the digital intermediary was actuated by malice in establishing or providing the online service by which the defamatory digital matter was published.

More flexibility in offer of amends

The Act permits a publisher of digital matter to make an offer of amends that includes an offer to take access prevention steps instead of, or in addition to, the otherwise mandatory items referred to in s 15(1)(d) and (e) of the Defamation Act.⁹

Orders against non-party digital intermediaries

Plaintiffs sometimes encounter practical problems with having defamatory material taken down after successfully obtaining injunctive relief preventing publication of the digital matter, or final judgment, against a defendant. For example, a defendant may refuse to take down the digital matter, or it may have moved to another website outside the defendant’s control (especially if it has ‘gone viral’). In such cases, plaintiffs often need to engage in self-help by writing directly to search engines, internet service providers, or other digital platform owners, informing them of the court’s orders, and requesting the removal of the impugned digital matter.

The Act aims to facilitate the enforcement of a successful plaintiff’s remedies against a defendant, by enabling the court to make a ‘take down’ order against a non-party digital intermediary, or otherwise requiring that intermediary to block, disable or otherwise prevent access to a digital matter.¹⁰ While a court must ordinarily provide a non-party digital intermediary an opportunity to be heard about whether such an order is appropriate, a court can make a temporary order without first hearing from the non party digital intermediary if the court considers it necessary pending a subsequent hearing on whether a final order should be made.

Identification of anonymous posters

A common problem is that posters of defamatory digital matter do so anonymously or using a pseudonym. In these circumstances, a plaintiff can apply for a preliminary discovery order under the usual court rules to find the poster’s name, address, IP address, or other identifying characteristics, to enable service of a concerns notice and an originating process.

The Act provides that a court asked to make such a preliminary discovery order must consider (a) the objects of the Defamation Act and (b) the ‘privacy, safety or other public interest considerations that may arise if the order is made’.¹¹ This does not provide a new basis to seek preliminary discovery, nor limit the matters which the court may otherwise take into account, but is intended to ensure the court considers privacy and safety considerations before requiring a digital intermediary to disclose any identifying information it holds about the poster. By way of practical example, a court will be required to consider the potential for domestic violence against the poster of a digital matter whose address is being sought by way of preliminary discovery by the alleged perpetrator.¹²

Giving of notice under the Defamation Act

The only means of giving or serving notices or documents required to be given or served under the Defamation Act (such as concerns notices) is email. The Act expands the means of giving or serving such notices and documents to include email, messaging services (such as direct messaging services found on Facebook, Instagram, or X [Twitter]), or other means of electronic communication that a person indicates can be used for giving or serving them documents.¹³

These amendments better reflect the nature of modern online communication and are intended to facilitate the making of complaints to digital intermediaries for the purposes of the new defence available to those entities.

Is defamation law still uniform?

All states and territories (with some qualification by South Australia) have agreed to use their ‘best endeavours’ to enact the Stage Two reforms by 1 July 2024.¹⁴ South Australia supports pt A of the Stage Two reforms (being the technology-related amendments referred to in this article) but has indicated that it will be further and separately considering the pt B reforms (relating to absolute privilege for sexual assault complaints).¹⁵

This setback to defamation law uniformity adds to existing issue of Western Australia and the Northern Territory continuing to delay their enactment of the Stage One reform to the MDPs agreed to by the Standing Council of Attorneys-General (SCAG) in 2020. Accordingly, and at least for the time being, Australian defamation law is no longer uniform.

Future review

The Standing Council of Attorneys-General has indicated that a review of the Stage One and Stage Two amendments is likely to occur in 2027. BN

ENDNOTES

^{1 As outlined by the Attorney-General in his Second Reading Speech, 11 October 2023.}

^{2 Defamation Amendment Bill 2023 (NSW) (‘Bill’), Statement of Public Interest.}

^{3 Explanatory Memorandum, Defamation Amendment Bill 2023 (NSW) 3.}

^{4 Schedule 1: at [3] of the Act, which inserts a new s 10C in the Defamation Act.}

^{5 Schedule 1: at [3] of the Act, which inserts a new s10D in the Defamation Act; see similar exemptions for passive intermediaries in ss 39B and 112E of the Copyright Act 1968 (Cth).}

^{6 Schedule 1: at [3] of the Act: new s 10D(2) of the Defamation Act.}

^{7 See, for example, Metropolitan International School v Designtechnica Corp [2009] EWHC 1765 (QB).}

^{8 Schedule 1: at [10] of the Act, which inserts a new s 39A in the Defamation Act.}

^{9 Schedule 1: at [4]–[5] of the Act, which amends s 15 of the Defamation Act.}

^{10 Schedule 1: at [10] of the Act, which inserts a new s 39A in the Defamation Act.}

^{11 Schedule 1: at [6] of the Act, which inserts a new s 23A in the Defamation Act.}

^{12 Explanatory Memorandum, Defamation Amendment Bill (2023) NSW 10.}

^{13 Schedule 1: at [11]–[14] of the Act, which amend s 44 of the Defamation Act.}

^{14 Standing Council of Attorneys-General communique, 22 September 2023.}

^{15 Ibid.}