Posted on November 12, 2023 by Stuart Simington and Dimitrious Havadjia
Changes to Defamation Law: New Exemptions and Defences for the Digital Age
In a world where anyone can post content online, including anonymously, the traditional understanding of a ‘publisher’ for the purposes of defamation law has been a vexed issue. Several High Court decisions in recent years have tried to define who is liable for defamatory content in the digital age, but the exact scope of liability has remained unclear. This has made it difficult for media companies, online businesses, and government entities who could potentially be liable for the defamation that is posted by other users on their websites or social media pages.
On 30 October 2023, a NSW bill to amend the Defamation Act 2005 (DA Act) received assent which seeks to provide clarity on exemptions and defences from liability for defamatory content posted online.
Some of the key changes are outlined below.
The bill introduces several new terms into the DA Act, including:
- digital intermediary,
- search engine,
- search engine provider,
- caching service,
- conduit service, and
- storage service
A digital intermediary is … a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published.
A search engine provider is a person who maintains, or provides users with access to the search functions of, the search engine being a software application or system designed to enable its users to search for content on the internet.
There could be several digital intermediaries in relation to a potentially defamatory publication including persons who act as forum administrators. Therefore, the administrator of a Facebook group and Facebook itself could be considered digital intermediaries in relation to a post made by a group member.
Digital Intermediary Exemptions and Defences
Exemptions from liability for defamation for digital intermediaries and search engine providers
A digital intermediary will not be liable for defamation for the publication of digital matter via a caching service, conduit service or storage service in certain circumstances, broadly where the intermediary only has a ‘passive’ role in the publication of the defamatory content.
To qualify for the exemption the intermediary must not have:
- initiated the steps required to publish the matter,
- selected any of the recipients of the matter,
- encouraged the poster of the matter to publish the matter,
- edited the content of the matter, whether before or after it was published, or
- promoted the matter, before or after it was published.
A search engine provider is not liable for defamation for:
- publication of search results or a hyperlink, where the provider’s role was limited to providing an automated process for the user to generate the search results, and
- the search provider did not promote or prioritise the results because of a payment or other benefit given to the provider by a third party.
These exemptions will assist:
- cloud storage providers that merely host defamatory videos, photos, or documents; and
- search engine providers that simply link to defamatory content without promotion of results.
But it would seem that if a search engine provider accepts payments to increase the ranking of the defamatory content in the list of results, it will not qualify for the exemption.
The changes appear to seek to codify the decision in Google LLC v Defteros  HCA 27, where the High Court did not find Google liable for publishing defamatory content merely by showing the content in its search results.
There are also new provisions that allow the Court to consider whether an exemption applies as soon as possible in any proceedings and to compel non-party providers to take steps to remove defamatory content.
Defence to publication by digital intermediaries
The innocent dissemination defence has also been expanded for digital intermediaries.
A new defence to defamation will apply under section 31A if a person can prove:
- they acted as a digital intermediary; and
- had an accessible complaints mechanism (as defined in the DA Act) for the plaintiff to use to complain about the defamatory content; and
- if a written complaint was made to the defendant, the defendant took any available reasonable access prevention steps (including removing or blocking the content) within 7 days of the complaint; and
- the defendant was not actuated by malice in establishing or providing the online service.
There is no requirement that a complaint actually have been made in order for a defendant to rely on the defence, as long as an appropriate system for making the complaint was in place.
The defence accordingly protects defendants who would otherwise be liable as ‘publishers’ at common law if they have a complaints system and take reasonable access prevention steps concerning defamatory publication.
These changes provide increased protection to businesses and government providers including organisations such as Google, Facebook, and Microsoft. Provided an appropriate complaint mechanism is in place and the search engine does not promote content or act with malice, there is likely to be either an exemption or defence to publication of defamatory matter by an intermediary or search engine.
The principle established by Fairfax Media Publications Pty Ltd v Voller  HCA 27, where a newspaper was held liable for defamatory comments made on its social media site, is not clearly displaced by these changes to the DA Act. While the administrator of a local resident’s group may have some defence against defamatory posts made by its members, councils could still be liable for defamatory comments posted on their social media posts, depending on:
- the level of engagement by a council with the content;
- whether any complaints system is compliant with the DA Act; and
- if appropriate steps to remove the content were taken following the receipt of a complaint.
Furthermore, from a practical standpoint, a defendant must prove the section 31A defence in Court. So it does not act as a bar to proceedings. Establishing a legal defence in Court usually involves a lot of time and money, even if a defence is available to the claim. Thus, providers must continue to exercise due diligence when dealing and reviewing potentially defamatory material posted on their services.
If you have any questions in relation to the above, please leave a comment below or contact Stuart Simington on 02 8235 9704 or Dimitrious Havadjia on 02 8235 9724.