New Rules Require Social Media Platforms to Maintain ‘Reasonable Access Prevention Steps’ – What Should This Look Like?
The recently introduced Section 31A of the Defamation Act 2005 (Vic) provides a new defence for digital intermediaries in defamation claims. The defence is available where the platform has provided an ‘accessible complaints mechanism’ and ‘reasonable access prevention steps’ for removing content online.
This article explores the parameters of this new section and what should be included in any complaints made to digital intermediaries going forward.
Overview of Section 31A
Section 31A operates to limit the liability of digital intermediaries (I.e., platforms such as Facebook, Instagram, Reddit, etc.) and shift responsibility on to the poster of the material. This was deemed necessary following cases such as Fairfax Media Publications Pty Ltd & Ors v Voller (2021) 273 CLR 346, where the Court found that digital intermediaries could be liable for defamatory material on their platform.
The defence is available for digital intermediaries if the following criteria is met:
1. There was an ‘accessible complaints mechanism’ for the plaintiff to use;
2. ‘Reasonable access prevention steps’ were taken by the defendant within seven days following the complaint from the plaintiff;
3. The complaint made by the plaintiff was in the prescribed format; and
4. That the defence of ‘malice’ is not available to the plaintiff. This can only be argued where the digital intermediary acted maliciously in providing the online service containing the defamatory material.
What is considered ‘accessible’ and ‘reasonable’?
The act defines an accessible complaints mechanism as one including an easily accessible address, location or other mechanism for the plaintiff to use. Examples of this include an email address, a direct messaging address, or a webpage.
On the other hand, reasonable access prevention steps are only vaguely defined in the legislation as steps which “were reasonable for the defendant to take in the circumstances”. What can be considered ‘reasonable’ in this context is also yet to be examined by the Courts. However, it is likely that this will require digital intermediaries to take significant steps to either remove the post from the platform or hide it from users temporarily.
Correctly making your complaint
If you are looking to make a complaint regarding defamatory material online, this new Section of the Defamation Act requires you to make the complaint in the correct format. Failure to do so could result in the digital intermediary not being required to act within seven days. Any complaint made should therefore include the following information:
1. Your name;
2. A description of the defamatory material and where it can be located; and
3. A clear statement that you believe the post is defamatory.
Being clear and accurate with your complaint is likely the best way to achieve a response from a digital intermediary.
Future Considerations
Section 31A and its relevant terms are likely to be examined by the Courts in the near future. This may result in a clearer definition on what access prevention steps will be considered ‘reasonable’. Until then – and to ensure that your complaint is dealt with appropriately – you should make sure to include all the required information in your complaint and ensure it is made through the correct complaint mechanism.
At Elit Lawyers, we have over 60 years’ specialised defamation law experience. Most recently, Elit Lawyers has been at the forefront of the emerging area involving potentially defamatory material being published on various digital intermediaries. 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.