Moving Australia’s defamation laws into the digital age

In December 2022, Australia’s nine Attorneys-General agreed in principle to reform Australia’s defamation laws on search engines and social media platforms.

The proposed amendments address the extent to which internet intermediaries are liable for defamatory material published by third party users online and are expected to come into effect from 1 January 2024.

“These reforms will substantially upgrade Australia’s uniform defamation laws which were drafted nearly two decades ago before the boom in social media”, said NSW Attorney-General Mark Speakman.

“Online technology means reputations can be irreparably damaged in a matter of keystrokes.

“That’s why NSW has been leading this work and consulting on these reforms to strike a better balance between protecting reputations and promoting freedom of speech online, in circumstances where third parties publish defamatory matter via internet intermediaries.”

One of the proposed amendments is to the innocent dissemination defence. In its current form, the defence enables subordinate distributors to escape liability if they can prove they had no knowledge of the defamatory material and that their failure to detect the material was not due to negligence.

Dr David Rolph, a Professor of Law at the University of Sydney Law School, said that the statutory innocent dissemination defence was drafted prior to the rise of social media platforms and the situation has changed significantly.

“Since 2005, there’s been such a vast proliferation of internet intermediaries, social media platforms, and the scope for innocent dissemination potentially to apply has expanded rapidly,” said Rolph.

“Even though as drafted and enacted, the innocent dissemination defence was intended to be sufficiently open textured and able to apply flexibly, really, what’s been needed is an overhaul of this provision and the whole legislation to bring it clearly into the 21st century.”

Rolph noted that recent cases have brought into sharp relief the issue of whether forum administrators of social media pages are a primary or secondary publisher.

“The High Court confirmed in Trkulja v Google that in order to avail yourself to the defence of innocent dissemination, you have to be a secondary publisher,” said Rolph.

“There are authorities to suggest that a forum administrator of online forums such as a Facebook page, is a primary rather than a secondary publisher.

“This would mean that they would have difficulty availing themselves to the defence of innocent dissemination.”

Associate Professor Jason Bosland, Director of the Media and Communications Law Research Network at the University of Melbourne, highlighted two key issues with the application of the current innocent dissemination defence.

“The first issue is who is able to take advantage of the defence? Who is considered to be an innocent disseminator? That is unclear when it comes to certain types of internet intermediaries such as the owners of Facebook pages, and those types of entities,” said Bosland.

“Then there’s the broader issue – and this applies to anyone who is an innocent disseminator – that, once they have knowledge or notice of the defamatory material and they don’t take action, they lose the benefit of the defence.

“That isn’t necessarily the right approach when it comes to some intermediaries. I think that they should have a stronger and more robust defence.”

Bosland emphasised that there are negative implications that flow on from the innocent dissemination defence. First, it creates an incentive for intermediaries not to monitor because that would trigger knowledge or notice of the words. Second, if the intermediary is made aware of the content, they’re likely going to remove it to avoid missing out on the defence.

“The problem with that is that it doesn’t adequately balance freedom of expression with the right to reputation,” said Bosland.

“As an intermediary, you would just take the material down, you wouldn’t bother trying to find out whether or not the material is in fact defamatory or whether or not there’s a defence that might apply.

“That has real consequences for freedom of expression.”

The proposed reforms include a new innocent dissemination defence for internet intermediaries that is subject to a complaints process. Once the internet intermediary receives a complaint, it must take reasonable steps to remove or otherwise prevent access to the matter within a specific period to rely upon the defence.

Two conditional statutory defences have also been proposed for a narrow group of internet intermediaries including conduits, caching, and storage services. Bosland commended the exemptions from defamation liability for these internet intermediaries due to their “passive role”.

“They have no responsibility for composing the material or requesting it, they have no control over it apart from blocking the people who might be accessing the service,” said Bosland.

“They merely perform a passive role, and we can’t impose liability on them.”

The proposed amendments provide a similar defence for search engine providers. However, Bosland distinguishes it from other intermediaries.

“When it comes to search engine providers, I think it’s more complicated because you can view a search engine provider as playing more than a passive role,” he said.

“They’ve set up an algorithm that will respond to requests by users entering certain search terms and their own algorithm produces the responses.

“There may be no human intervention, but I don’t know whether you can classify them as being purely passive.”

Whether search engine providers are liable for defamation remains an area of contention in Australian case law. In Google v Defteros, the High Court held that Google was not liable in defamation for providing hyperlinks to defamatory web pages about George Defteros. The reasoning for this was that the search results themselves were not defamatory and the act of providing a hyperlink was considered “too remote”.

“The majority judgment said Google wasn’t liable because to simply provide a hyperlink without doing more is too remote from the tort that is committed when a search user accesses a defamatory website,” said Bosland.

However, more recently in Duffy v Google, the South Australia Supreme Court found that Goggle was liable for defaming Janice Duffy in both the snippet, the actual search result, and the material it was hyperlinked to.

“It’s not that Google is no longer liable for providing hyperlinks to defamatory material,” said Bosland.

“It’s that in Defteros, on the facts, Google merely provided a hyperlink without encouraging or enticing anyone to click through it,” he said.

The proposed amendments seek to clarify the legislature’s position in Section 9A(3) of the Model Defamation Amendment Provisions 2022. It reads:

“A search engine provider for a search engine is not liable for defamation for the publication of digital matter if the provider proves:
a) the matter is limited to search results generated using the search engine from search terms inputted by the user of the engine rather than terms automatically suggested by the engine, and
b) the provider’s role was limited to providing an automated process for the user to generate the search results.”

Bosland questioned whether the proposed amendment should make it clear that the new defence is not limited to just search results but that it also covers third party defamatory material that is accessed by a hyperlink contained within the search results.

“We’re certainly behind other countries,” said Bosland.

“The United States has an extremely strong defence [Section 230 of the Communications Decency Act] that was introduced very early in the digital revolution.

“They haven’t needed to then grapple with changes in technology and all these sorts of intricate issues because they dealt with it so broadly early on. This is no doubt attributed to the freedom of speech, First Amendment backdrop.”

The proposed amendments will bring Australia’s defamation laws into the 21st century and in line with other countries such as the United Kingdom that introduced similar reforms in 2013.