On December 2022, all nine attorneys-general across the country, agreed in principle to new reforms to the uniform defamation legislation, the Model Defamation Provisions (“MDPs”) enacted by each Australian state and territory. Those reforms focus on the responsibilities and liability of digital platforms for defamatory content published online as well as other new and emerging issues affecting defamation law.
The proposed reforms are considered necessary in circumstances where the impact of the internet and social media in particular are not reflected in the traditional concepts of publication as applied in the MDPs.
The amendments include:
- two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results. These amendments acknowledge that certain traditional intermediaries such as telephone lines and postal services are so passive in the facilitation of a publication that they should not be considered as publishers. The amendments also acknowledge that in performing standard functions, search engines have no interest in the content;
- a new innocent dissemination defence for internet intermediaries, subject to a simple complaints process;
- a new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online. These amendments acknowledge the fact that an internet intermediary, despite not being a party to defamation proceedings, may be in a good position to remove defamatory content when a plaintiff may have difficulty in enforcing a remedy against a defendant;
- a requirement that courts consider balancing factors such as the privacy and safety of parties when making preliminary discovery orders; and
- updates to mandatory requirements for an offer to make amends for online publications. The proposed amendments would allow a publisher of an online publication to, rather than offer to publish a reasonable correction or clarification of the matter in question, offer to prevent access to that matter.
The above reforms have been agreed in principle for commencement from 1 July 2024 and are expected to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries.
Marino Law has extensive experience acting for both plaintiffs and defendants in defamation proceedings. Our highly experienced litigation lawyers can assist you if you believe you have been defamed by another or, have recently received a concerns notice.
Should you require assistance in any of the above areas, please contact one of our highly experienced litigation lawyers.
