Following the recent High Court’s decision in Fairfax Media Publications Pty Ltd v Voller and Google LLC v Defteros, draft amendments were released to Australia’s defamation laws, relating to intermediary liability (as stage 2).
The key recommendations/proposed amendments relate to:
- A conditional exemption from defamation liability for mere conduits, caching and storage services;
- A conditional exemption from defamation liability for search engines when they are providing standard search engine functions;
- Two alternative models for a defence for digital intermediaries, being:
- Model A – A defence for digital intermediaries that requires them to have a simple complaints notice process and upon receipt of a complaints notice, to provide (with consent) identifying information about the poster to the complainant or to take steps to prevent access to the material, which were reasonable in the circumstances (safe habour defence); or
- Model B – A defence for digital intermediaries, which requires them to have a simple complaints notice process and upon receipt of a complaint, to take steps to prevent access to the material, which were reasonable in the circumstances (innocent dissemination defence).
- Whether the Commonwealth Government should consider whether defamation law should be carved out from the operation of s.235(1) of Online Safety Act 2021 (Cth), which deals with the liability of Australian hosting providers and ISPs for certain content online.
The recommendations propose that a digital intermediary be defined as “a person, other than an author, origination or poster of the matter, who provides an online service in connection with the publication of the matter.” Thus, it would also cover social media platforms, review websites and forum administrators, in addition to search engines and ISPs.
Additionally, the recommendations propose to give the Courts power to make an order against non-parties to prevent online access to defamatory matter.
The proposed amendments raise issues as to how they will work with the current statutory scheme and existing common law position relating to search engines. The reforms may not provide a complete defamation immunity for digital intermediaries in respect to all the business activity, depending on how they are drafted in final form. For example, the proposed exemption for liability for search engines is “limited to search results generated using the search engine from search terms inputted by the user of the engine rather than terms automatically suggested by the engine.”
It will be interesting to see how the final proposed amendments look at the close of written submission on 9 September 2022.