Changes in the Defamation Amendment Act 2023 (NSW) will improve the balance between freedom of speech and protection of reputation when someone publishes content through a digital intermediary.
Social media platforms, review websites, search engines, content hosts and service providers are examples of digital intermediaries, along with organisations and individuals who use online platforms to host forums inviting third-party comments (known as forum administrators).
These reforms address the High Court’s decision in Fairfax Media Publications v Voller. This case involved several media companies acting as forum administrators. The High Court found the media companies to be publishers of comments posted on their social media pages by third-party users responding to their content.
Under the new laws, the media companies, as forum administrators, may be able to rely on a new defence. This defence is for digital intermediaries who ‘innocently disseminate’ defamatory content.
Many forum administrators are ordinary people, rather than media companies. For example, a parent might host a Facebook page for other parents to discuss issues relating to the school which their children attend. A member of a local sporting club might host a Facebook page for members to share information about upcoming games.
These forum administrators may also be able to rely on the new innocent dissemination defence if a member of the forum posts defamatory content on the Facebook page. To access the defence, the forum administrator must do certain things, such as providing an email address or other easily accessible way for people to complain of defamatory content.
The reforms will also benefit victims of online defamation. The reforms establish a simple process by which a person can submit a complaint to a digital intermediary. If the digital intermediary does not take down the content within seven days, they can lose access to the innocent dissemination defence.
The reforms also empower courts to order digital intermediaries who are not party to defamation proceedings to take down defamatory content.
The legislation implements reforms developed through Part A of the Stage 2 Review of the Model Defamation Provisions, led by the NSW Government.
The Act also extends the defence of absolute privilege to reports made to police, such as a complaint of sexual assault. This would address any chilling effect the threat of defamation proceedings could have on making a complaint.
Attorney General Michael Daley said:
“The previous defamation laws were passed at a time when the sort of digital access we now enjoy could not have been imagined by most of us.
“It is essential our laws reflect the world in which we live, and these changes aim to address the challenges posed by the rapid spread of defamatory information online and clarify the legislation for complainants and publishers.
“In designing the new laws, it was essential to strike a balance between not unreasonably limiting freedom of expression in circumstances where third parties publish defamatory matter via digital intermediaries and protecting reputations.
“It was crucial, too, that freedom of speech was protected. This is a basic tenet of open democracy such as the one we enjoy in Australia and allows for the exchange of ideas and opinions. However, it must be balanced with the right to protect one’s reputation and people must also be able to seek redress if they believe theirs has been unjustly damaged.”
