There were signs of life last week in the Stage 2 Part A Review of Model Defamation Provisions, concerning liability of internet intermediaries for third party content, in the shape of a communique from the Standing Council of Attorneys-General (SCAG).
The communique and accompanying media release from reform champions NSW (reform update) were light on detail, providing a brief inclusive five dot-point list of the reforms that are in play. The dot points are familiar to those who engaged with the Stage 2 Discussion Paper and draft amendment provisions in 2022, with 36 written submissions and a stakeholder round table.
The reform update does suggest that there has been some movement on the draft amendment provisions, saying “careful consideration has been given to the feedback received from a wide range of stakeholders and this has informed further refinements”.
The reform update says that the SCAG had agreed in principle to enact amendments in each jurisdiction to commence from 1 January 2024.
The reform update says that the in-principle approvals of amendments for Part A of the Stage 2 review will follow “final agreement in the first half of 2023”.
A spokesperson for NSW Department of Communities and Justice has said that final amendments will be published at that time.
In the meantime, we are left to look at the five dot-points in the reform update as a guide to where the uniform law is heading.
The two recommendations in play are a confidential statutory exemption from defamation liability for mere conduits, caching and storage services and a conditional statutory exemption from defamation liability for “standard search engine functions”.
The latter was the focus of submissions from many stakeholders, ranging from “defamation lawyers” who submitted that “immunity from suit for search engines is wholly inappropriate and serves no public interest” to submissions from search engine operators who welcomed a positive recognition of a search engine’s massive, disinterested, automated and economically valuable functions, whilst expressing concerns about drafting aspects.
One of those concerns arose from the draft amendment provisions limiting the exemption to “search terms inputted by the user of the engine rather than terms automatically suggested by the engine”. The effect would be that an automated search result would not have the benefit of the exemption if there was any involvement of autocomplete – a feature that is almost ubiquitous in modern search experience.
The reform update introduces the term “organic search results” in describing the limits of the exemption. This is wording that did not appear in the Stage 2 Discussion Paper or draft provisions. It is hard to know whether this language points to maintaining the draft amendment position that disqualifies search results that involve autocomplete, or only paid search results.
The Stage 2 draft amendment provisions and Discussion Paper presented two alternative models designed to “clarify the law for the benefit of complainants, internet intermediaries and originators”.
As described, both alternatives are predicated on a “simple complaints notice process”
It appears that an innocent dissemination defence has been favoured over the safe harbour proposal, where the internet intermediary would have had an automatic defence where the complainant has sufficient information to direct a Concerns Notice to the originator.
If that is the case, it goes against the numbers, given that a review of the 36 written submissions shows that the safe harbour approach received the strongest support.
It is likely that this power will be accompanied by a requirement that notice be given to the non-party intermediary to allow it to make submissions about the making of any order and its form.
The factors in consideration include privacy and safety, for example where a discovery order might disclose location information for a domestic violence victim or political dissident. The reform does not provide a new avenue for preliminary discovery, but is likely to introduce threshold requirements to apply to existing rules.
There is not much room for speculation over the proposal to amend the mandatory requirements in an offer to make amends to provide the option for an online publisher to have a matter removed from online, rather than the requirement to publish a clarification or correction – an almost impossible assignment for an internet intermediary.
Finally, the reform update suggests that SCAG did not reach a view as to whether it is desirable to legislate an exemption from s235(1) of the Online Safety Act 2021 (Cth) for defamation law.
This provision provides that State or Territory legislation, common law or equity has no effect if it subjects an Australian hosting service or ISP to liability, where they were not aware of the nature of online content or requires a hosting service provider or ISP to monitor online content.
The question has been pointed in the direction of Canberra, with Commonwealth officials to “consider the desirability of an exemption … and report back to the Defamation Law Working Party in the first half of 2023.”
In response to the invitation to comment on the Stage 2 exposure draft, a number of submissions took the opportunity to raise problems identified in the final drafting or subsequent operation of Stage 1 reforms, including in relation to the compulsory Concerns Notice provisions.
There is no suggestion in the reform update that SCAG were circling back to address any Stage 1 concerns.
The only comfort is the reference to an in-principle agreement that there should be a review of the Stage 1 and Stage 2 reforms, beginning no later than 3 years after the commencement of the Stage 2 amendments, in all states and territories.
This is in the context where an equivalent 5-year review date for the 2005 uniform defamation laws in NSW was largely overlooked until 2018, when SCAG convened to initiate Stage 1 of the current round of reforms.
A tally of the nine SCAG participants confirms Attorneys-General of Northern Territory and Western Australia were on board for the December 2022 meeting.
No light is shed on whether the other Attorneys General raised the failure of those two jurisdictions to pass or enact the agreed provisions in Stage 1 of the reforms, frustrating the key objective of uniformity for close to 18 months and counting.
Many thanks to Law Clerk, Ayathma Withanage for her assistance.
This article first appeared in the Gazette of Law and Journalism, www.glj.com.au