Social media sites could be forced to block access to defamatory posts within 14 days, under a proposed shakeup of Australian defamation law that state Attorneys General say will “strike a better balance” between protecting reputations and freedom of expression.
Now open for submissions until 9 September, the proposed Model Defamation Amendment Provisions 2022 Part A have been designed to clarify the legal liability of internet intermediaries for third-party content published on their sites.
Designed to “strike a better balance between protecting reputations and not unreasonably limiting freedom of expression,” the report is part of a process to update the nationwide Model Defamation Provisions – first adopted in 2005 – to clarify the liability of intermediates including internet service providers, content hosts, search engines, social media platforms, and third-party forum hosting sites.
A discussion paper on the issue was published in April 2021, attracting over 50 submissions that fuelled three stakeholder roundtables last year, which in turn guided the changes in the new proposal.
The nuances of ownership of online content have complicated questions about who is responsible for online posts made on these platforms, with a pair of recent High Court decisions illustrating the complexities that the 18-year-old laws have created.
One high-profile NSW Supreme Court ruling – relating to comments made online about the mistreatment of 17-year-old Dylan Voller in youth detention – concluded that media companies publishing stories on Facebook can also be considered publishers of the comments that readers make when responding to those stories.
An appeal by Fairfax, Nationwide News, and Australian News Channel was denied last September, establishing High Court precedent that media companies are responsible for posts by readers, even on third-party sites.
Another High Court verdict, handed down this month, took a different approach by ruling that Google is not the publisher of material to which its search engine links – and cannot therefore not be considered to have participated in the publication of defamatory content to which it links.
Such decisions highlight the ongoing challenges in applying existing defamation law to the online environment, NSW Attorney General Mark Speakman said in announcing the latest stage of the reform process.
“Technology has advanced in leaps and bounds since Australia’s uniform defamation laws were drafted 18 years ago,” he explained, noting that “almost anyone can post their views on a wide range of platforms at the touch of a screen or a button.”
“The real question,” he added, “is when search engines like Google, social media platforms like Meta, and a whole range of other internet intermediaries should be liable for content posted by users.”
Consistency in defamation legislation
The paper recommends seven primary reforms addressing “the full spectrum of internet intermediary liability for third-party content,” including providing a statutory exemption for “conduits, caching and storage services” as well as “standard search engine functions” – a nod to the High Court’s recent Google decision.
“Search engines are unable to remove content from the internet, operate on a massive scale, and have no relationship with the originator,” the paper notes while also flagging search engines’ “significant social and economic value”.
The new model would also establish a clear process for lodging complaints about defamatory posts with internet intermediaries – who would be required to respond to complaints within a set period of time.
Intermediaries could claim a ‘safe harbour’ defence if they provide details of the poster of the content to the complainant, but those intermediaries would be expected to “prevent access to the content” within 14 days.
Another recommendation would empower courts to make orders against organisations or persons that are not parties to defamation proceedings.
Under current practice, during a case where one individual sues another over a defamatory YouTube video, for example, the court normally won’t order YouTube to take down the video.
The new rules would speed takedown by allowing orders to third-party operators to “prevent access to defamatory matter online”.
The reformed laws would also clarify the circumstances in which a complainant can get a court order for details about the person posting alleged defamatory content – a crucial step that proved pivotal in recent legal action by employment site Glassdoor, defamation action by a Melbourne dentist, and a lawyer who was awarded $750,000 in damages over a defamatory Google review.
Also proposed is a change to dispute resolution processes, in which publishers could be ordered to block defamatory matters rather than simply being allowed to publish a clarification or retraction as in the past.
“In considering this reform,” Speakman said, “it is critical that we balance protecting free speech with the right of individuals to seek redress in appropriate circumstances for harm caused to their reputation.”