ByLawyers News and Updates

Defamation – VIC

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The long-awaited second stage of the uniform defamation law reform has effect in Victoria from 11 September.

These reforms have already commenced on 1 July in the ACT and NSW. Other states are expected to follow in due course.

The 2024 amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

The legislation now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

  1. initiate the steps required to publish the matter;
  2. select any of the recipients of the matter;
  3. encourage the poster of the defamatory material to publish the matter;
  4. edit the content of the matter whether before or after it was published; or
  5. promote the matter whether before or after it was published.

The section applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery in defamation cases about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within seven days of the complaint .

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgement, or an injunction, against a defendant in proceedings the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege under uniform defamation law

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

 

Defamation law – FED

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The long-awaited second stage of the uniform defamation law reform has effect in NSW and ACT from 1 July 2024 with all states except South Australia to follow.

The 2024 amendments include:

Exemption from liability as publishers for digital intermediaries

Division 2A of the various state Defamation Acts now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

  1. initiate the steps required to publish the matter;
  2. select any of the recipients of the matter;
  3. encourage the poster of the defamatory material to publish the matter;
  4. edit the content of the matter whether before or after it was published; or
  5. promote the matter whether before or after it was published.

The section applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within seven days of the complaint .

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgement, or an injunction, against a defendant in proceedings the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

Further updates to this publication for recent defamation cases are also imminent.

 

Defamation reforms – All states

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The By Lawyers Defamation and protecting reputation guide has been substantially reviewed and updated. This review is related to the current and imminent defamation reforms to the various laws around the country.

Practitioners may be aware of the long-heralded and substantial reforms to the uniform defamation law, following approval at COAG in 2020. As the uniform law is not Commonwealth legislation, but depends on the various state and territory Defamation Acts, implementing the reforms requires each state to pass amendments to its own Act.

So far only some states have passed their legislation, with some including NSW, VIC, QLD, SA and ACT to commence from 1 July 2021. The other states and territories are expected to follow soon. However, the result is that for the first time since 2005 – and for an indeterminate but hopefully brief period – Australia does not have uniform defamation laws. Rather, there are different laws in different states.

The By Lawyers Defamation and protecting reputation publication is being updated on an interim and graduated basis for these amendments. The publication will be finally updated when the defamation reforms become law in all states and territories.

The key aspects of the current amendments are:

  • a new ‘serious harm’ requirement;
  • new defences, including a new ‘public interest’ defence;
  • amendments to the way some damages for reputational harm are capped;
  • new limitation periods taking account of the fact content remains online for years.

There is also a second round of defamation reform currently under consideration. The main focus of these reforms is the liability of social media companies for defamation. Further updates to the By Lawyers Defamation and protecting reputation publication will occur when the proposed reforms are enacted.

As a precursor to these reforms, By Lawyers has been working with our author Peter Breen to revise and streamline our publication. Users will find that the matter plan now provides the usual, practical By Lawyers guidance to conducting a matter, with the relevant commentary, precedents and example content in sequential order. The commentary is adapted from Peter’s book Defamation and protecting reputation which is reproduced in its entirety in the ‘Reference materials’ folder on the matter plan in the By Lawyers guide.

The detail of the current reforms is explained in the publication.

Matter type changes

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There has been a technical change to the structure of our Defamation & Protecting Reputation and Neighbourhood Disputes publications. They have been changed from federal matter types to state-based matter types.

Subscribers may notice that the title of the Defamation publication now includes a state name. This is nominative only. The content of the Defamation publication is unchanged and remains the same across all states.

For state-based guides and precedents to be visible from existing matters, LEAP Desktop users will need to change their matter type from Other areas of law > Miscellaneous > Disputes to Other areas of law > Disputes.

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

Defamation and Protecting Reputation

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Defamation and Protecting Reputation

OCTOBER
  • Costs Agreements
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
    • VIC/NSW – included reference to time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.
    • WA – added clause on scale fees.
JUNE
  • Updated figure for damages for non-economic loss under section 35(3) of the Defamation Act 2005 updated for 2016. The figure is uniform across all jurisdictions.
MAY
  • Case Law – Succession – added new case under ‘Child Omitted from will’ heading – Brimelow v Alampi [2016] VSC 135.
  • Business structures – Comparative table – Included land tax for TAS WA ACT and NT.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH

 

Public shame – Justice and defamation in the digital age

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We know their names and we’ve seen the memes. Individuals such as former speaker Bronwyn Bishop, news presenter Brian Williams and dentist Walter Palmer are among the members of an ever widening group of people who have all been the subject of large scale public ire and ridicule in the digital era.

It is difficult to ignore the powerful role that social media plays in present day public shaming and defamation. These platforms have enabled individuals to reach potential audiences of millions overnight. The speed and ease of public shaming is matched by the ubiquity of internet outrage in our culture to the extent that author Jon Ronson (2015) in his book ‘So you have been publicly shamed’ argues that we are experiencing a ‘renaissance of public humiliation’.

Public shame, the law and the rise of internet mob ‘justice’

At various points throughout history, public humiliation has fallen in and out of favour as a means of justice and as a form of entertainment. While most formal modern justice systems have discarded public humiliation in favour of more effective, and less cruel methods, at various points in time, in a variety of cultures, public humiliation has been used as an important tool of criminal and social sanction (Breen, 2016).

In the colonial period many state sanctioned punishments had an element of publicity. For example, in Australia public flogging and head shaving were commonly used punishments for male and female convicts. However, as the increased urbanisation of the industrial revolution gave people greater anonymity and the ability to move more freely between towns, public humiliation ceased to be an effective deterrent.

Over time the law has developed a complicated relationship with public humiliation. The court strives to overcome the problems and bias of vigilante mob justice by applying methodical due process to enforce laws. Monetary and custodial orders have been the preferred methods of correction in many modern justice systems for the majority of the 20th and 21st centuries. However, in recent years there has been a resurgence of courts, particularly in the US, using shame as an alternative to criminal penalties or as a way to increase them. For example, in Ohio in 2013, a 62-year-old man who pleaded no contest to a misdemeanour charge was ordered to stand in public wearing a sign that read “I am am a bully! I pick on children that are disabled” in addition to receiving a short jail sentence and community service.

Many see the resurgence in public shaming orders as a response to prison overcrowding and the relationship between the courts, post-modern journalism and entertainment. The courts have evolved from public forums and it is still very common for trials to receive widespread public attention. It is a widely held perception that the general public has a stake in justice proceedings. In the US, the distinction between justice, news and entertainment is blurred by televised versions of court proceedings such as ‘Judge Judy’ and ‘The Peoples Court’. Kohm (2011) identifies the inherent emotionality of crime as the driving force behind the ability of court proceedings to capture widespread media and public attention. A crime or violation of accepted social norms can give rise to public fear, anger and outrage. Notable examples of this are the trials of Oscar Pistorius, OJ Simpson and Steven Avery, all were viewed by global audiences numbering in the millions.

Online, public shaming has most likely existed since the chat rooms of the early days of the internet. However online public shaming has been most prominent since the inception of large online forums and social media platforms in the early 2000’s such as YouTube, Facebook, Twitter, 4chan and Reddit. Before these websites it was difficult for information to ‘go viral’. Today it’s difficult to imagine the internet before the trolling, vitriolic comment threads and clickbait. Many authors argue that the speed of online communication has increased the demand for entertainment in the form of public humiliation.

Problems that arise with online shaming

The appeal of online shaming and outrage culture is easily visible. An individual who feels that they have been wronged need only turn to Facebook or Twitter where they will find a community of like-minded supporters who are willing to take up their cause. Online participation is also empowering, giving rise to the perception that there is a shortcut to justice that avoids the complexities and potential disappointment of litigation. The everyday individual alongside ‘hacktivists’ or ‘digitialantes’ can simply take the matter into their own hands.

The nature of the internet as a ‘global village’ presents numerous opportunities for online shaming to flourish. As we share more of our lives, information and opinions online, we are presented with two choices; conceal our identity or accept that everything we say online will be on record forever and moderate ourselves accordingly (Love, 2013). These contradictory features of online life give the internet the qualities of both a wild west frontier and a puritan small town. The long memory of the internet means that shaming can have consequences for the individual many years after the incident, while the ability to be anonymous online enables people to use an array of tactics to target others, leaving the law scrambling to identify and deal with those involved.

The principle issue with the online environment is that online shaming in the name of justice is a blunt instrument. The random nature of mob justice means that sometimes it targets people who deserve punishment while at other times targets people who do not (Fisher, 2015). Consider the example of a man who was taking a picture of himself outside a Melbourne Target last year. The man was standing next to a large picture of Darth Vader on ‘May the 4th’ taking a picture to send to his kids. Children who were nearby told their mother who then informed the shopping centre security and police and also posted a picture of the man on Facebook identifying him as a ‘creep’. Within a short time, the post and the man’s picture was shared with over 20,000 people. The man identified voluntarily submitted to a police search and interrogation in order to clear his name, while his accuser, even after issuing a public apology, received strong negative backlash that included death threats.

Another issue with online shaming is that it can have very serious offline consequences. Many people, such as the women at the centre of ‘Gamergate’, have had their personal information published online and have had to leave their homes after being subjected to numerous incidences of harassment and threats of physical violence. Others have lost their jobs, such as PR woman Justine Sacco, who after making a careless tweet about AIDs, took a year to find new employment (Ronson, 2015). Businesses have also suffered under negative online reviews posted on sites such as Yelp and TripAdvisor. For the individuals targeted, there are also many potential negative psychological outcomes of being the subject of online shaming such as depression, anxiety, insomnia and agoraphobia.

The ability of online shaming to have far reaching real world consequences inevitably gives rise to the ethical concerns of whether the punishment fits the crime. Modern justice systems attempt to deal with evidence and proportionalities, two important features which are absent from online shaming. In these situations, it isn’t clear who decides what punishment is fitting or how they arrived at the decision.

Common methods of online shaming

Doxing: Researching and publicly displaying personally identifiable information such as a person’s home address, phone number or financial information.

Swatting: An extension of doxing that has occurred in the US where prank calls lead to the deployment of emergency services to a targeted individual’s address.

Revenge porn: The publishing of non-consensual pornography on the internet in order to humiliate a person, frequently distributed by computer hackers or ex-partners.

Negative Reviews: Posting negative reviews of a business on websites such as Yelp and TripAdvisor.

Online shaming and defamation law in Australia

In Australia defamation can come under civil or criminal law (Breen, 2015). Defamation actions under civil law are covered by Australia’s uniform defamation laws. However, the state jurisdictions also have laws criminalising certain defamatory actions. For example, in New South Wales section 529 of the Crimes Act 1900 states that:

A person who, without lawful excuse, publishes matter defamatory of another living person (the “victim” ):

(a)    knowing the matter to be false, and

(b)    with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused,

is guilty of an offence.

The maximum penalty is 3 years’ imprisonment.

Criminal defamation is a rarely used charge in Australia, however in 2009 an Adelaide man was convicted of criminal defamation after posting defamatory material about a police officer on Facebook. He became the second person in South Australia’s history to be convicted of the charge.

Under civil law the remedies for defamation include compensation for economic and non-economic loss. It is also possible to obtain an injunction preventing further publication of defamatory material. For a civil defamation action to succeed the plaintiff must prove that:

  • the communication was published to one or more people (other than the plaintiff);
  • that the communication identified the plaintiff; and
  • that the communication was defamatory, meaning that it had the effect of diminishing the plaintiff’s reputation in the eyes of ordinary people in the community and/or leads people to avoid or dislike the plaintiff.

Burgess (2013) makes an important distinction between the purpose of civil and criminal defamation laws. Civil defamation law aims to vindicate and protect the reputation of the person defamed while criminal defamation law is intended to punish the defamer and protect the community.

Currently only one state in Australia has made revenge porn a criminal offence. In 2014 Victoria made it a criminal offence to maliciously distribute intimate images without a person’s consent. However further changes may be on the horizon. In October last year the Federal Parliament introduced a bill seeking to amend the Commonwealth Criminal code to criminalise the act of ‘sharing private sexual material’ without the consent of the subject of the material.

Although they have not been commonly used, there are also civil remedies for victims of revenge porn and other privacy breaches under the uniform defamation laws, through an action for breach of confidence. The elements of an action for breach of confidence include:

  • The information published was of a confidential nature;
  • The information was communicated or obtained in circumstances that carried an obligation of confidence; and
  • There was unauthorised use of the information.

At this time, it is unclear what legal actions are available to individuals who have had their personal information leaked online through doxing methods. While there is legislative protection for personal information, there is currently no right to sue for invasion of privacy in Australia. However, there is now widespread recognition that the current system of civil and criminal laws is inadequate for people seeking protection against privacy breaches.

In late February the New South Wales Standing Committee on Law and Justice recommended that NSW lead the way in creating new legal action for serious invasions of privacy. The proposed changes would enable a person to sue for damages if their privacy had been invaded intentionally or recklessly, and would make it possible to pursue governments and corporations for negligent privacy breaches. The government is required to respond by 5 September 2016.

As the internet has become a more integral part of our lives, many users of social media do not recognise the power that they have on these platforms (Hudson, 2013). Police and legal professionals have issued numerous warnings against taking grievances online, as public shaming actions which damage a person’s reputation either unjustifiably or inexcusably will likely be found to breach Australia’s defamation laws (Wolfenden, 2015). It will depend on the particular circumstances and complexities of each individual case as to whether an online shaming campaign is actionable.

By Lawyers now publishes a comprehensive legal guide – Defamation – Protecting Reputation, to enable practitioners to confidently handle defamation disputes, with or without recourse to litigation.

Sources

Breen, P. (2016). Protecting Reputation: Defamation practice, procedure and precedents. The Manual.

Burgess, C. (2013). Criminal defamation in Australia: Time to go or stay. Murdoch UL Rev., 20, 1.

Fischer, M. (2015, July 30). From Gamergate to Cecil the lion: Internet mob justice is out of control. VOX. Retrieved February 20, 2016, from http://www.vox.com/2015/7/30/9074865/cecil-lion-palmer-mob-justice

Hudson, L. (2013, July 24). Why You Should Think Twice Before Shaming Anyone on Social Media. Wired. Retrieved March 08, 2016, from http://www.wired.com/2013/07/ap_argshaming/

Kohm, S. A. (2009). Naming, shaming and criminal justice: Mass-mediated humiliation as entertainment and punishment. Crime, Media, Culture, 5(2), 188-205.

Love, J. (2013, September 12). Sharing or oversharing online? The American Scholar. Retrieved February 26, 2016, from https://theamericanscholar.org/sharing-or-oversharing-online/#.Vt4wY9D1fhx

Ronson, J. (2015). So you’ve been publicly shamed. Picador.

Wolfenden, E. (2015, July 21). Online public shaming: Fair game or misdirected blame? Retrieved February 29, 2016, from http://bakerlove.com.au/online-public-shaming-fair-game-or-misdirected-blame/

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