Uniformity deadline passes as digital defamation deformation prevails

The goal of uniformity for Australian defamation law is set to fall short again as a majority of jurisdictions fail to meet their own timeline for the proposed model Stage 2 defamation law reforms.

The Stage 2 reforms centre on issues affecting digital publications that are unrestrained by state boundaries. In the absence of uniform reform, Australia’s digital defamation laws are effectively “unreformed”, with a plaintiff able to bring a digital defamation action in the recalcitrant jurisdiction of their choice.

In September 2023, a majority of jurisdictions committed to using “best endeavours” to enact the Stage 2 reforms as framed in model amendments by 1 July 2024.

With only days to run on that deadline, where is each jurisdiction up to with Stage 2 reforms and why are these reforms posing a challenge for uniformity?

The Stage 2 model amendments

First, a quick recap on the Stage 2 reforms.

The “Stage 2, Part A” amendments focus on the position of online intermediaries in the publication of defamatory material. The Stage 2, Part A reforms include:

• An exemption from liability for a digital intermediary for the publication of digital matter if:
  • its role in the publication is passive and limited to providing a caching service, conduit service or storage service (i.e. it is not actively 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 digital intermediaries in relation to defamatory digital matter posted by a third party so long as reasonable steps are taken to remove or prevent access to the matter within 7 days of a compliant complaint.
• Provisions addressing specific concerns with the offer to make amends process and the service of notices in the digital age; and
• Provisions enabling courts to make take-down orders against non-party digital intermediaries.

The “Stage 2, Part B” amendments extend the defence of absolute privilege to publications made to police while acting in their official capacity and provide guiding principles for how absolute privilege may also extend to material published to statutory bodies. These Part B reforms aim to ensure defamation laws do not indirectly deter individuals from reporting unlawful conduct / misconduct.

Where are the reforms up to?

Western Australia and the Northern Territory are well off the pace as they are yet to adopt the Stage 1 reforms, enacted by other jurisdictions in the second half of 2021. This means there are two jurisdictions yet to implement mandatory concerns notices, the single publication rule for electronic publications, the serious harm threshold, the public interest defence and other significant changes.

Reform champions NSW, followed by ACT and Victoria are the only ones on pace to enact the Stage 2 model amendments by the proposed uniformity deadline. The table below shows where each jurisdiction stands as at 24 June 2024:

Conclusion

These reforms are not about a local newspaper on the front lawn, a slander over the back fence or an attack pinned to a strata corkboard. The Stage 2, Part A reforms relate to online publication, where state-by-state disparity is an anachronistic nonsense.

As it is, the Stage 2 reforms date back to work undertaken in 2020, an eon in tech development, which means that the provisions predate the rise of AI, with no consideration of how liability or defences might apply to developments in publication that are testing so many areas of established law.

If the states do not get it together, either fragmentation and forum shopping will prevail, or the Commonwealth will step in.