Seal of approval for national defamation reforms

Australia’s nine Attorneys-General have endorsed in principle reforms to modernise the nation’s defamation laws on search engines and social media platforms, at their final meeting for 2022.

The Standing Council of Attorneys-General agreed in principle to enact amendments in each jurisdiction to address the extent to which internet intermediaries are liable for reputation-damaging material published by third party users online, to commence from 1 January 2024.

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

“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.”

The reforms include:

• Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results
• A new ‘innocent dissemination’ defence for internet intermediaries, subject to a simple complaints process – once the internet intermediary has received a complaint, it must take reasonable steps to remove or otherwise prevent access to the matter within a specific period in order to be able to rely on the defence
• A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online
• Requiring courts to consider balancing factors in making preliminary discovery orders
• Updates to mandatory requirements for an offer to make amends for online publications.

These reforms are the product of extensive consultation, including a public exposure draft released in August 2022 which received 36 submissions, and a stakeholder roundtable.

“We thank all stakeholders, including the technology sector, media companies, lawyers and other individuals, as well as the NSW Defamation Expert Panel (with judicial, other legal and academic members), for their insightful contributions to this significant work,” Mr Speakman said.

Further information on the reforms and consultation process is available here. The Standing Council of Attorneys-General December communique is available here.