The ACT Government is upgrading its defamation laws to strengthen protections for victim survivors, and clarify when digital intermediaries, including social media platforms and search engines, are liable for defamatory material.
Introduced into the Legislative Assembly on Wednesday 6 February, the Civil Law (Wrongs) Amendment Bill 2024 will also make it easier for people to have harmful content removed or corrected. The reforms aim to strike a better balance between protecting reputations, while not unreasonably limiting freedom of expression online.
Noting significant developments in technology and the digital environment since Australia's uniform defamation laws were drafted in 2005, Attorney-General Shane Rattenbury said the new laws reflect the modern digital world.
"That is why the Standing Council of Attorneys-General has agreed for all jurisdictions to enact the legislative amendments to start on 1 July 2024," Minister Rattenbury said.
"Currently, the law can be unclear on when digital intermediaries are liable for defamatory material."
Digital intermediaries include internet service providers, search engines, review websites, social media platforms and organisations, and individuals who use online platforms to host forums that invite third‑party comments.
"Internet users and online service providers need to know their rights and obligations. This will reduce the stress and cost associated with defamation litigation," Minister Rattenbury added.
The proposed amendments include:
- Certain "passive" digital intermediaries, including email, caching and storage services, will be exempted from liability for defamatory content published using their service, provided that the digital intermediary did not take any active steps to publish the content (e.g. editing or promoting it).
- Search engines will be exempt from liability for automatically generated search results containing defamatory material, provided that the search engine did not promote or favour the content for commercial benefit.
- A new 'innocent dissemination' defence will be introduced for digital intermediaries, such as hosts of websites or social media pages. The defence will operate so that intermediaries cannot be sued for content posted by third parties, provided that they offer a simple complaints process for members of the public and act within seven days to take down content that is allegedly defamatory.
- Courts will be granted a new power to make orders against non-party digital intermediaries (e.g. website or platform host), requiring them to prevent access to defamatory matter online.
The ACT Government recognises that defamation laws may be used to silence and control
victim survivors of criminal and unlawful conduct, which can deter those affected from reporting such incidents.
"The reforms will extend the defence of absolute privilege to communications with police and other prescribed statutory bodies, such as the ACT Human Rights Commission. This is a complete defence and is intended to discourage alleged perpetrators from commencing or threatening defamation proceedings, or otherwise to ensure that courts can quickly dismiss proceedings," said Minister Rattenbury.
"This will foster a safer community for all Canberrans where criminal and unlawful conduct is able to be reported, appropriately investigated and punished. People should feel confident to come forward with complaints, without fear of being sued in defamation."
