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New defamation defence a response to landmark High Court decision
A new defence may give the media more powers to protect themselves from defamatory material posted by social media users.
Naomi Neilson
In addition to media companies, the digital defamation update in the Defamation Amendment Act 2023 will protect ordinary people in NSW and the ACT who host or comment on Facebook pages, post on review websites, provide search engines, and more.
NSW Attorney-General Michael Daley said the previous defamation laws came at a time “when the sort of digital access we now enjoy could not have been imagined by most of us”.
“It is essential our laws reflect the world we live in, 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.
“In designing the new laws, it was essential to balance between not unreasonably limiting freedom of expression in circumstances where third parties publish defamatory material via digital intermediaries and protecting reputation,” Daley said in a statement.
The reforms were introduced in response to the decision in Fairfax Media Publications v Voller, which saw Fairfax (now Nine), Nationwide News, and Australian News Channel penalised for comments made by third parties on their social media platforms.
The High Court found anyone who hosts or facilitates online or social media content may be liable for defamatory comments.
Under the new laws, media companies, as forum administrators, can argue it “innocently disseminated” the defamatory material.
However, forum administrators will need to take certain steps to protect themselves, including providing an email address that will allow people an easy way to make a defamation complaint.
If the forum administrators do not take the defamatory material down within seven days, they will lose access to the defence.
Courts will also have the power to order digital intermediaries who are not party to defamation proceedings to take down content.
An additional change made in the Defamation Amendment Act 2023 extends the defence of absolute privilege in police reports.
The NSW government said this would address “any chilling effect” the threat of defamation proceedings could have on coming forward.
“It was crucial … that freedom of speech was protected,” Daley said.
“This is a basic tenet of open democracy, such as the one we enjoy in Australia, and allows for the exchange of ideas and opinions.
“However, it must be balanced with the right to protect one’s reputation, and people must also be able to seek redress if they believe theirs has been unjustly damaged.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
