It’s been a slow build for reform of Australia’s defamation laws. The latest round started in early 2019, with a new public interest defence for journalism, a ‘substantial harm’ test and other changes coming into effect in the middle of last year.
But changes to the treatment of online intermediaries – search engines, social media and others – were deferred to a second round of reform. The need to follow through on this aspect was emphasised last year with the High Court’s decision in the Voller case that saw news publishers held liable for defamatory content in third party comments posted on Facebook.
Last week the reform of intermediary liability took a new turn with the publication by the Meeting of Attorneys-General (MAG) of possible changes to the state and territory defamation laws. Then on Wednesday the High Court handed down its decision in Google’s appeal against earlier Victorian decisions in a case brought by George Defteros. The High Court found Google was not liable where it just provided a link in search results, in response to an unprompted user query, to an article in The Age. The MAG paper recommends exemptions for ‘mere conduits’ such as ISPs and for search engines. The search exemption would apply when providing automated search results based on a user query, as long as the search engine provider doesn’t gain some benefit from promoting the content. It also recommends some protection for other digital intermediaries including social media services as well as ‘forum administrators’ - and this includes the news services who were the subject of the Voller decision. There are two (alternative) proposals – an innocent dissemination defence and a safe harbour defence – either of which might involve the intermediary taking reasonable ‘access prevention steps’.
Under the innocent dissemination approach, an intermediary will only be liable if they fail to respond to a complaints notice and prevent access within 14 days. Under the alternative safe harbour approach, an intermediary is covered if the complainant knows who posted the material so they can take action against them. This information may be provided by the intermediary if they have the poster’s consent; failing that, the intermediary can still claim the defence by preventing access to the content.
It remains to be seen how the Defteros decision affects the proposed legislative amendments, but both represent progress in the balancing of reputation and free speech. Submissions on the legislative amendments are due on September 9 to: defamationreview@justice.nsw.gov.au
This article was featured in our Newsletter of 19 August – you can read it in full here.
Derek Wilding, CMT Co-Director