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.

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"We were forced to issue legal proceedings against the insurer for a number of reasons including disagreement about the amount of money that was required to be paid out under the policy to reinstate our home. I want to express our deepest heartfelt gratitude and appreciation for all Elit did for our family throughout this matter."

Insurance Policy Holder

Home owner

Thank you to Danielle and Mark and the Elit team for all their hard work in acting for myself and my family against a large international insurer following a fire sustained at our home. We were forced to issue legal proceedings against the insurer for a number of reasons including disagreement about the amount of money that was required to be paid out under the policy to reinstate our home. I want to express our deepest heartfelt gratitude and appreciation for all Elit did for our family throughout this matter.
The work of Danielle and Mark was professional, consistent and to the highest standard throughout this process. I was so impressed by each of the team. It wasn’t just their exceptional professional work that left the impression, but more importantly, their interactions as good, decent, kind individuals. Thank you Elit for captaining this litigation ship throughout the tiresome journey! We really appreciate everything you have done for us. I hope and pray that each one of you has a share in some of the comfort you have provided my family in your own lives.

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"Being subject to malicious false statements was very stressful, as I have always conducted myself with professionalism and integrity.  As a result of the action taken by Robert McGirr & Elit Lawyers, the false statements were retracted, I received a formal apology and was paid my legal costs. "

Defamation

Plaintiff

I was engaged to appear on behalf of a resident at an aged care home in a proceeding before the Tasmanian Civil and Administrative Tribunal (TASCAT). A false and defamatory email was sent by a senior executive of the home about my conduct at the hearing to a number of third parties.

The false statements contained in that email were serious and damaging to my reputation, and included amongst other things, an imputation of criminality, which if proven to be true, could have resulted in a term of imprisonment. Being subject to malicious false statements was very stressful, as I have always conducted myself with professionalism and integrity. 

As a result of the action taken by Robert McGirr and Elit Lawyers, the false statements were retracted, I received a formal apology and was paid my legal costs. I could not have achieved this outcome without the assistance of Robert. I felt informed and comforted throughout the process and am very grateful for the early result that was achieved. 

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"I was devastated when I learnt of a very serious defamatory publication made against me. I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings with anonymity."

Defamation

Plaintiff

I was devastated when I learnt of a very serious defamatory publication made against me.

I was concerned that bringing a Court proceeding would lead to widespread media reporting which would in turn repeat the allegations made against me and cause even more harm to my reputation because let’s face it – mud sticks.

I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings against the publishers with anonymity and be comforted that the defamatory content linked to my name would not be further spread.

I felt vindicated at the end of the matter and will always look back on the experience as a difficult one but knowing that issuing the court proceedings was what I had to do in order to achieve redress and restore my reputation.

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"When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me. "

Defamation

Lawyer and Business Owner

As a lawyer and business owner, I take our professional reputation seriously.

When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. Their calm, clear, and strategic guidance was exactly what we needed. They quickly understood the key issues and provided practical options that prioritised our values and professional standing.

I was impressed with their ability to get across the key issues and provide real life practical advice during this critical time which really centred around us and what was best for our business.

As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me.

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"My business was sued for defamation. The Eit team were able to pinpoint the weaknesses in the other side’s case and were able to resolve the proceeding on very favourable terms for us."

CEO

Medical Industry

My business was sued for defamation and my insurance company appointed Aggie, Danielle, Robert and the Elit team to act in my defence of the proceeding.

I was astounded by the fact that the Eit team were able to pinpoint the weaknesses in the other side’s case and after bringing an interlocutory application on my behalf, they were able to resolve the proceeding on very favourable terms for us.

I felt informed and comforted throughout the process and am very grateful for the early result that was achieved.

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"I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives."

Director

ASX Listed Company

Danielle and team acted on behalf of myself and my fellow directors of an ASX listed company in the Supreme Court of Western Australia involving repeated attacks and defamatory content being posted about us on a forum website. The third party website operator was also joined to the proceeding.

Given the personal attacks made against me and my fellow directors, it was a difficult situation over an extended period and I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives to have the content removed and undertakings that no future defamatory content would be published by the person involved.

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