One step forward, one back: advancements in digital defamation reform amidst a setback in uniformity

The latest signpost on the long road to defamation law reform appears to point to another departure from national uniformity with the recent announcement that not all states are on-board for a revised set of model amendments, focussed on the position of online intermediaries[1] (revised amendments).  A majority of jurisdictions have also committed to use “best endeavours” to enact those changes by 1 July 2024[2], while the possibility of Commonwealth intervention looms larger.

Uniform in tatters?

The somewhat oblique reference in the recent announcement to the Standing Council of Attorneys-General (SCAG) members approving reforms “by majority” raises concern that the effective uniformity reached when all states and territories aligned in 2005 may suffer another setback through these Stage 2 reforms. 

The Northern Territory and Western Australia have already cast themselves as uniform reform laggards, yet to adopt the Stage 1 reforms enacted in the second half of 1 July 2021 by other states and territories.

South Australia has now expressly set itself apart, lending support to “aspects” of the latest reforms while considering further “as to how they might best apply to South Australian legislation” .[3]  A source from inside the reform process says that they remain hopeful that, with Cabinet approvals, the Northern Territory and Western Australia will each enact their Stage 1 and Stage 2 amendments at the same time.

Uniformity is an absolute. National online publishers are already dealing with diverse schemes, with plaintiffs continuing to file proceedings in Western Australia without the need for the Stage 1 mandatory concerns notice process[4].

Absent uniformity, there is the possibility of Federal intervention. The area of digital defamation is right in the Commonwealth wheelhouse and the impetus for Federal legislation is only strengthened with the Federal Court already the forum of choice for defamation plaintiffs.

The amendments

The aims of the Stage 2 Part A amendments include:

• An exemption from liability for a digital intermediary for the publication of digital matter if:
  • its role in the publication is limited to providing a caching service, conduit service or storage service without taking an active role in the publication, such as initiating, promoting or editing the matter; or
  • it is a search engine provider with a role limited to providing an automated process for users to generate search results identifying or linking to a webpage on which the matter is located.
• A defence for a digital intermediary in relation to defamatory digital matter posted by a third party if reasonable steps are taken to remove or prevent access to the matter within 7 days of a compliant complaint.
• Addressing digital specific concerns with the offer to make amends process and the service of notices; and
• Enabling courts to make take-down orders against non-party digital intermediaries.

The present round of reforms dates back to work undertaken in 2020, a Discussion Paper in April 2021, which was followed by an Exposure Draft that was the subject of public consultation in August – September 2022 (Exposure Draft).

Since this digital defamation reform process began, there have been two significant decisions of the High Court of Australia concerning the liability of digital intermediaries for their participation in the publication of defamatory matter. The High Court, by majority, in Fairfax Media Publications Pty Ltd & Ors v Voller[5] determined that media companies that administered public Facebook pages were liable for comments posted by third party users.

The majority in Google LLC v Defteros[6] held that a search engine provider was not liable as a publisher of defamatory matter on a web page simply because there was a hyperlink included in the organic search results. The decision was described at the time by then President of the Australian Bar Association and author of The Law of Defamation and the Internet, Dr Matt Collins AM QC, as “a very significant fillip for operators of search engines, exempting them in most cases from the ambit of Australian defamation law”[7].

Three years is also a long time in the digital world. The process predates the rise of popular AI, signalled by the introduction of Chat GPT in 2022. The revised amendments have no provisions for liability or defences that fit this new digital paradigm.

What is new in the revised model amendments?

The revised amendments show a number of developments when compared to the Exposure Draft.

The Exposure Draft included exemptions for digital intermediaries and search engine providers.[8] The revised amendments have clarified and expanded these exemptions:[9]

• The Exposure Draft contained a carve-out so that search results generated by a user clicking on a term proposed by an autocomplete function had no protection. The new revised amendments have removed this carve-out.[10]
   
• The revised amendments have removed the express requirement that search engine providers ‘prove’ the nature of the impugned digital matter.[11] This is consistent with a new provision which allows for the early determination of digital intermediary exceptions[12].
   
• The revised amendments also include a specific provision which includes hyperlinks as part of the exemption for search engine providers, if the provider’s role was limited to providing an automated process for the user to generate the search results.[13]

Whilst the revised amendments do away with the requirement that the impugned digital matter be ‘limited to search results’ for the exemption to apply, there remains a requirement that the search engine provider’s role be limited to “providing an automated process for the user… to generate the results”.[14]

There have also been changes to the defence for the publication of defamatory material by digital intermediaries. The Exposure Draft had put up two alternative versions – a safe harbour defence where the complainant has sufficient information about the originator of the publication to issue a concerns notice or commence proceedings, with an accompanying complaints process, and an innocent dissemination defence which also included a complaints process.[15] The revised amendments have adopted the latter, albeit in a modified form.[16] Instead of the previously proposed complaints process that required access to the defamatory material being restricted or the provision of identifying information about the originator of the material, the revised amendments propose a simplified complaints process that excludes the element of the defence which required the provision of identifying information.[17] The new provision also requires complainants to provide sufficient detail in their complaints, “to enable a reasonable person in the defendant’s circumstances to be made aware” of certain matters including the name of the complainant and the location of the defamatory material.[18]

The revised amendments have increased the scope of a court’s powers to make orders against non-party digital intermediaries in defamation proceedings.[19] Under the new provisions, the court may make temporary orders before digital intermediaries have been given the opportunity to be heard and non-parties can be the subject of orders even when they are exempt from liability for defamation.[20]

Conclusion

The SCAG announcement and revised amendments will deliver digital publishers (or at least those that were contemplated in pre-AI 2021) with welcome news that improved and clarified legislation is on its way. What remains to be seen is the extent to which “uniformity” can be salvaged, with clear signs that there is likely to be further interstate fragmentation and the possibility of Federal Government intervention.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).