The second stage of the national defamation reforms is nearing its end. New protections are proposed for digital intermediaries including ISPs, search engines and social media. Most importantly for some, the reforms also remove liability of news organisations for user comments posted on their social media sites. Or do they?
While the Defamation Working Party’s background paper suggests that ‘digital intermediary’ will include forum administrators that present pages on which users post comments, a group of defamation lawyers says that the proposed amendments protect ‘tech giants’ but don’t work for news publishers. If that’s right, the reforms would not address the issue arising from the High Court’s decision in Fairfax v Voller last year which confirmed that news publishers are liable for third party comments.
All of this is being worked through in the form of Model Defamation Amendment Provisions that would need to be agreed by this joint state and federal working group and then adopted by the states and territories in amendments to their Defamation Acts. CMT is making a submission on the proposals in which we say (in summary):
- We support the proposal for ISPs, caching services and data storage services to be given an immunity that stops them from being characterised as publishers under defamation law.
- We also broadly support the idea that search results should not give rise to a defamation action.
- On the question of liability of social media services and forum administrators for third party comments – and this includes news publishers – we support a ‘safe harbour’ combined with an extended innocent dissemination defence where the safe harbour is not available. The safe harbour would protect the service or publisher in circumstances where the identity of the person who posted the comments can be ascertained.
Of course, the value of any safe harbour or extended defence is seriously undermined if, as the defamation lawyers suggest, the amendments only protect social media providers and not forum administrators. It’s worth noting here that the lawyers strongly object to any safe harbour for social media and forum administrators, just as they object to an immunity for ISPs and other ‘mere conduits’, instead preferring a more limited defence.
We hope that the Defamation Working Party takes a more expansive approach to the new protections, rather than simply amending the existing defence of innocent dissemination. But whatever approach they choose, it’s crucial that the drafting covers forum administrators and addresses the Voller problem that plagues news publishers.
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Derek Wilding, CMT Co-Director