On 1 July 2024, changes relating to digital intermediary liability and absolute privilege came into effect in New South Wales and the Australian Capital Territory's defamation laws.

Firstly, a new innocent dissemination defence for digital intermediaries has been introduced in s 31A of the Defamation Act 2005 (NSW) and s 139BA of the Civil Wrongs Act 2002 (ACT) to deal with the Voller decision regarding liability for third party online content.  Digital intermediary is defined broadly and specifically includes forum administrators.    

The defence is available to digital intermediaries which have an accessible complaints mechanism, including an easily accessible address, location or other mechanism available for an aggrieved person to make a complaint about the publication of online content.  If a written complaint is made which contains specified information, and the digital intermediary takes reasonable 'access prevention steps' in relation to the online content within seven days, they will have a complete defence to a defamation action.  An 'access prevention step' is a step that removes or blocks, disables or prevents access to the online content.  

Secondly, the legislative amendments introduce exemptions from defamation liability for conduit, caching and storage services and for search engines in relation to organic (and not sponsored) search results.  Because these are exemptions rather than defences (which necessarily require an entity to first be liable for a publication), it will allow the early resolution of proceedings against such digital intermediaries.  

Thirdly, the reforms also:

• update the offer to make amends scheme slightly in relation to online content to incorporate the concept of 'access prevention steps' in what may form part of an offer;
• provide for the matters a court must take into account when considering whether to make preliminary discovery orders against digital intermediaries; and
• expand the electronic means by which notices can be served.

Finally, the reforms provide a new species of absolute privilege – where a publication is made to a police officer while the police officer is acting in their official capacity.  

Key takeaways

1. Identify which entities or people within your organisation are digital intermediaries.
2. Make sure your complaints process is easily accessible, functional and compliant with the new defence and that staff know to escalate complaints in a timely manner.
3. Review what access prevention steps are available for each digital platform and prepare a strategy or policy for addressing complaints.

Authors

Marlia Saunders | Partner | +61 2 8248 5836 | msaunders@tglaw.com.au

Amelia CausleyTodd | Associate | +61 2 8248 3455 | acausleytodd@tglaw.com.au

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