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.