Online Platforms Get New Protections From Defamation Under Reforms in NSW

SYDNEY, AUSTRALIA - FEBRUARY 18: In this photo illustration reports on Facebook's news ban on Australian and International content on February 18, 2021 in Sydney, Australia. Facebook has banned publishers an users in Australia from posting it sharing news content as the Australian government prepares to pass laws that will require social media companies to pay news publishers for sharing using content on their platforms. (Photo by Brendon Thorne/Getty Images)

The New South Wales (NSW) government has adopted changes to its Defamation Amendment Act 2023. Together with the ACT, they become the first jurisdictions to modernise defamation laws in Australia.

These changes include improving the balance between freedom of speech and protection of reputation when an individual publishes content through a digital intermediary.

Among these digital intermediaries are social media platforms, search engines, review websites, service providers, and content hosts.

Organisations and entities that use online platforms to host forums that invite third-party commentators, also known as forum administrators, are also included.

The move comes after the High Court’s decision in the Fairfax Media Publications v Voller case, which involved several media companies acting as forum administrators.

The judgement declared that organisations and individuals who maintain Facebook pages or other online forums are liable for any defamatory content that third-party commentators may post.

By adopting the new laws, media companies, as forum administrators, can rely on this new defence when users “innocently disseminate” defamatory content on their platforms.

It acknowledges the fact that many forum administrators are ordinary people. For example, parents who host Facebook pages for other parents to discuss school-related issues.

Forum administrators may also rely on the new innocent dissemination defence if any member of the forum posts defamatory content on their respective Facebook pages.

However, to access the defence, the forum administrator must provide their email address or other accessible ways for people to report defamatory content.

Additionally, the legislation reforms will also help victims of online defamation by simplifying the process on which they can submit a complaint against a digital intermediary.

If the digital intermediary does not remove the defaming content within a week, they are prohibited from acquiring innocent dissemination defence.

The legislation will be implemented through Part A of the Stage 2 Review of the the Model Defamation Provisions, led by the NSW government.

As part of the changes made to the Act, defence of absolute privilege will also be extended to reports made to the police, such as sexual assault complaints. This would target any adverse effect the threat of defamation proceedings could have on a complaint.

Attorney General Michael Daley acknowledged the technological age of society, where digital access is on an unprecedented level.

“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,” Mr. Daley said.

He also stressed the importance of upholding democracy as something Australians enjoy and allow for the free exchange of ideas and opinions.

However, it must all be balanced to simultaneously allow freedom of expression while seeking protection for people’s reputation.