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:
- initiate the steps required to publish the matter;
- select any of the recipients of the matter;
- encourage the poster of the defamatory material to publish the matter;
- edit the content of the matter whether before or after it was published; or
- 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.