Defamation Law Reforms Stage 2 – Tips and Traps for Practitioners

The Stage 2 Defamation Reforms have recently come into force in Victoria providing new defences against defamatory content posted online, and a new kind of immunity to those reporting defamatory content to police.

 

These changes have been implemented through amendments to the Defamation Act 2005 (the Defamation Act) by the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024. Below are some important tips and traps for practitioners to be aware of now that these changes are in effect.

 

What are ‘Digital Intermediaries’ and When are they Exempt from Liability?

Before pursuing defamation proceedings, practitioners should be aware of the new statutory exemption available to ‘digital intermediaries’ available with the Stage 2 Reforms. This exemption is introduced through the newly introduced sections 10B-10E of the Defamation Act.

A digital intermediary is a term used to describe a person or entity who provides the online service responsible for the published material without being the original author. The Stage 2 Reforms grant immunity from liability to these intermediaries if they are providing either of the following without further involvement:

1. Caching, conduit or storage services; or

2. Automated or hyperlinked search engine results.

Editing, promoting, or encouraging the publication of the content are all key factors considered when determining whether the intermediary has prevented immunity by involving themselves with the publication.

 

What Defence is Available to Other Digital Intermediaries?

Even where a digital intermediary is not granted immunity, they may still be able to utilise a new defence provided by section 31A of the Defamation act through the Stage 2 Reforms.

The defence will only be available where the intermediary has an accessible complaints process for the removal of published content. The intermediary must have also received a written complaint from the affected person and have taken reasonable steps to remove the content either before receiving the complaint or within seven days of receiving the complaint.

Therefore, parties should ensure that all the proper steps are taken in relation to the removal of content before initiating proceedings against an intermediary, even if they are not exempt from liability.

 

New Rules Bring New Immunities; Who do they Apply to?

Section 27(2)(ba) of the Defamation Act has introduced a new defence of ‘Absolute Privilege’ for a person who publishes a matter to an official of a police force or service of an Australian jurisdiction. This rule grants the publisher complete immunity from any potential liability. In this context, protection also extends to those who are engaged to act on behalf of a police official, and police officials of other jurisdictions.

Previously, ‘Absolute Privilege’ was only available to publications made during Parliamentary or Court proceedings. The new rule therefore overrides the previous ‘Qualified Privilege’ for publications of this kind, which would only protect a publisher if their actions were done in good faith and without malice.

As the law continues to develop, parties should take care to check who exactly the relevant publication was made by and to and be aware that defamation proceedings may not be actionable against someone who made a report to the police.

 

At Elit Lawyers, we have over 60 years’ specialised defamation and media law experience, successfully representing individuals and companies in defamation and reputational matters. If you need expert advice on defamation, contact us personally.

 

Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.

Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.

 

Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.

Share
Email
Print

Get in touch

With us personally, it is just one more way we’re different.

Danielle Snell

CO-FOUNDER AND MANAGING PARTNER

.

Robert McGirr

CO-FOUNDER AND PARTNER

.

"

"I was shocked when a high-value asset of mine was stolen and my insurance company refused to pay me out. Within two months of engaging Elit, my insurance company changed its mind. What a spectacular result!"

Executive

Luxury Asset Owner

I was shocked when a high-value luxury asset of mine was stolen and my insurance company refused to pay me out on the basis that I had allegedly breached a condition of the insurance policy.

As a busy executive, I needed legal help that was clear, prompt and effective and this was exactly what I got from Danielle, Mark and the Elit team when they commenced acting on my behalf. Elit analysed the facts and noticed various details that provided an opportunity to challenge the insurers’ denial of my claim.

Within two months of engaging Elit, my insurance company changed its mind and agreed to indemnify me under my policy. This was such a massive relief to me.

What a spectacular result! I can’t thank the Elit team enough.

"

"Danielle's dedication and expertise was outstanding and made a significant impact on the case, leading to an outcome we were very pleased with."

CEO and Director

Technology Sector

Danielle Snell and the Elit team represented our company in a restraint of trade case issued in the Federal Court of Australia concerning a former senior executive of our company breaching his employment contract and duties by allegedly soliciting clients and staff from our company to set up a competing business.

Danielle’s strategic acumen in the litigation was impressive. She maintained clear, practical and consistent communication throughout the process, keeping me informed of every development. Her dedication and expertise was outstanding and made a significant impact on the case, leading to an outcome we were very pleased with.

"

"Danielle's guidance was invaluable. I highly recommend Danielle, Robert and the Elit team for their dedicated, expert and supportive approach to commercial litigation."

Managing Director

Finance and Infrastructure Sector

Danielle represented me when I was a key witness in a significant construction case spanning across 12 weeks.

I was required to give evidence in the litigation which involved me being cross-examined by senior counsel over 2 days. Danielle’s guidance was invaluable. She provided clear direction and advice about the technical and practical aspects of giving evidence and instilled confidence in me throughout the process. Her expertise and unwavering support during this time was pivotal.

I highly recommend Danielle, Robert and the Elit team for their dedicated, expert and supportive approach to commercial litigation.

"

"I just wanted to thank you all for the hard work and dedication you put into my Workcover case. A special thanks to Aggie whom I'm glad I chose to support me."

Personal Injury

Shane

I just wanted to thank you all for the hard work and dedication you put into my Workcover case.

A special thanks to Aggie whom I’m glad I chose to support me and give me the step by step instructions on how to go about proving my case for a result in my favour.

Thanks again for all your advice.

"

"Aggie is the best lawyer in Common Law Claims I have ever worked with. Aggie helped me achieve an extraordinary outcome."

Common Law Claim

Ian

Aggie is the best lawyer in Common Law Claims I have ever worked with. Having seen a couple of large Law Firms l felt let down, being quickly shown the front door. Luckily for me a friend suggested seeing Aggie Vlahos (Partner).

Having engaged Aggie Vlahos gave me the confidence to continue with the injuries l knew were caused by heavy physical and repetitive work. I am also indebted to Brendan Johnson (Barrister) for his outstanding efforts!

She explained everything in a way I could easily understand and always got back to me quickly when I had questions even outside her working hours.

Aggie helped me achieve an extraordinary outcome. However, only charged fair fees.

If someone is seeking a legal help, I highly recommend Aggie Vlahos and Elit Lawyers.

P.S. Thanks to you so much Aggie

"

"I had the good luck to be recommended to Aggie Vlahos for handling my Estate Litigation Case. Through Aggie I achieved a very satisfying result."

Estate Litigation

Jan

I had the good luck to be recommended to Aggie Vlahos for handling my Estate Litigation Case. She was always available to me, no matter how big or small my concern was. She was kind, patient, easy to talk to and very understanding regarding my troubles.

The case was resolved within only 5 months, which I was grateful for. Through Aggie I achieved a very satisfying result.

I would have no hesitation in recommending her to others.

 

"

"If you want a safe, caring, professional group of lawyers and company, look no further than Aggie Vlahos and Elit Lawyers."

Family Law Matter

Michael

Thank you to Aggie Vlahos (Partner) and the staff at Elit Law, also James Eley (Barrister). You did a marvelous job in representing me in relation to my family matter and most importantly caring about me and providing a secure environment for me to navigate a very difficult situation.

The result you achieved was nothing short of amazing. The professionalism displayed on the day by Aggie and James blew me away. With their invaluable guidance and support we achieved a extremely favourable result.

If you want a safe, caring, professional group of lawyers and company, look no further than Elit Lawyers.

Great people, Great Service, Great Company.

 

"

"The best of the best plaintiff lawyers against insurance companies. We had a very tough and complex case and Danielle and her team settled with the insurance company for an optimal outcome."

Insurance Policy Holder

Home owner

The best of the best plaintiff lawyers team against insurance companies.

We had a very tough and complex case against insurance company that we lost our home and contents.  After disappointing and frustrating process from another law firm and firing them we found Danielle Snell and her team.

They are very dedicated, knowledgeable, passionate and possess great communication skills.  We couldn’t ask for more and settled with a optimal outcome.

"

"It’s great to be able to confidently refer clients to someone who can help and support them, and to feel that they are receiving the best service."

Senior Adviser

Financial Planner

We are so glad to have you in our referral channel.

It’s great to be able to confidently refer clients to someone who can help and support them, and to feel that they are receiving the best service.

"

"This was a “David v Goliath” fight as our dispute was with a large global corporation. The attention, compassion and guidance that Danielle and the team showed us was absolutely incredible."

CEO & Founder

National mental-health support organisation

We recently instructed Danielle from Elit Lawyers by McGirr & Snell to help with a legal dispute. As a small purpose led business, this was a “David v Goliath” fight as our dispute was with a large global corporation. This dispute was during a very emotional time as we were in the middle of a global pandemic, Melbourne’s sixth lockdown, homeschooling and no childcare – all while trying to keep our small business alive.

The attention, compassion and guidance that Danielle and the team showed us was absolutely incredible. I have 10 years legal experience myself and even with that, I was reluctant to litigate, especially during such a difficult time. However Danielle always gave us confidence in knowing that she was in our corner and always working for our best interests, so my reluctance was quickly appeased.

Today I am pleased to share that David defeated Goliath and we could not be more thrilled with the result we received thanks to Danielle and the team from Elit Lawyers. Danielle not only saved our company, but ensured that we could continue doing the good work we were previously and helping improve the lives and mental health of mothers across Australia.

I could not recommend Danielle and the team from Elit Lawyers more highly. I am *hoping* that I will never need their services again, but feel very reassured knowing they are there and always in my corner.

Thank you Danielle and team.

"

"Elit negotiated a settlement which saw all proceedings against my company dismissed, with no order as to costs."

Owner and Managing Director

Major Transport Company

I was recently introduced to Elit Lawyers by McGirr & Snell by my former lawyers after they were required to cease acting for me due to a conflict of interest. The stakes were high as my company was exposed to multiple court proceedings. Elit Lawyers by McGirr & Snell impressed me so much. They went that extra mile and were able to negotiate a settlement which saw all proceedings against my company dismissed, with no order as to costs. I can’t thank Elit enough.

"

"Danielle is a well-known and respected lawyer who knows how to handle difficult and intensive litigation."

Kings Counsel, Devers List

Victorian Bar

Danielle Snell is a very intelligent and impressive lawyer whom I have worked with in my role as senior counsel on various litigation matters.  She is a well-known and respected lawyer who knows how to handle difficult and intensive litigation.  Danielle combines a deep knowledge of the law across many practice areas with a practical approach to litigation, and is authentic and charismatic in her dealings with others.

"

"Danielle and Robert demonstrate outstanding expertise and approach all matters methodically with a clear and practical focus..."

Chief Operations Officer

Peak industry body for fire protection

As Chief Operating Officer it is extremely important to work with lawyers who are easily accessible, honest and trustworthy.  We have briefed Elit Lawyers by McGirr and Snell across various legal disciplines and now use them as our “go to” solicitors.  Danielle and Robert demonstrate outstanding expertise and approach all matters methodically with a clear and practical focus on achieving the best possible result.

"

"Danielle demonstrated a refreshing and unique ability to narrow the issues, and succinctly explain complex matters."

General Counsel

Leading home building company

Having worked alongside Danielle in litigation matters I have found her approach to be thorough and strategic.  In particular, Danielle demonstrated a refreshing and unique ability to narrow the issues, and succinctly explain complex matters.

Previous
Next

Can't find what you're looking for?