The Attorney General has invited Australians to have their say on new defamation reform proposals pertaining to search engines and social media sites.
Australia’s uniform defamation legislation was drafted 18 years ago. As such, the Meeting of the Attorney General has agreed to release the exposure draft amendments to the current review of the Model Defamation Provisions. The review of the defamation legislation is in its second stage and Part A of the review concerns the question of intermediary liability in defamation for the publication of third-party content. Due to an outdated test for determining who is a publisher under common law, an internet intermediary is anyone who participates in the facilitation of the publication other than a person who authors the content in the first place. This applies to a broad range of actors, including search engines like Google and social media platforms like Meta and Twitter.
NSW is leading this reform and the NSW Attorney General commented on the delicate balance between protecting free speech with the right to seek redress for reputational harm caused through online publications. Prior to the exposure draft, a discussion paper was released in April 2021. Whilst stakeholder opinions differed, the general consensus was that further clarity is required in the realm of defamation. Moreover, stakeholders such as academics, legal professionals, technology and media companies, local legal centres, and government bodies, were of the opinion that the reform should focus on the dispute between the complainant and the originator of the defamatory material. Several stakeholders highlighted that it is not fair to hold an internet intermediary liable for third-party content of which they are unaware. Conversely, legal commentators argued that complainants should not be left without a remedy.
The request for public opinion has come at a fortunate time as Google was recently held not liable for defamation via its search engine. It will be interesting to see whether this decision will influence further reform of the Model Defamation Provisions. Australians may lodge a written submission regarding the exposure draft here. Submissions close on 9 September 2022.
For a full reading of the exposure draft, see here.
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