Content hosts could soon have a new defamation defence if sued over the comments posted by third-party users. Photo: PeopleImages.
People who host third-party forums or social media sites could soon have a defence against potential defamation proceedings that arise over comments posted by others.
Attorney-General Shane Rattenbury presented the Civil Law (Wrongs) Amendment Bill 2024 to the Legislative Assembly, which proposes several changes to modernise the law for the digital world.
Mr Rattenbury said the adjustments would better define when digital intermediaries – such as service providers, content hosts, search engines, review websites, social media platforms and forum hosts – are liable for defamatory material.
“Recently, there have been long and costly defamation disputes where the host of a website has been found to be the publisher of comments posted on their forums by third-party users,” he said.
“These disputes have generated confusion, and there’s a widespread agreement on needing to clarify the law in this area.”
The proposed amendments include exempting certain ‘passive digital intermediaries’ (such as email, caching and storage devices) from liability for defamatory content published using their service, provided the intermediary didn’t take any active steps (such as editing or promoting) to publish the content.
Search engines would also be exempt for automatically generating search results containing defamatory material, but only if the result was organic and not sponsored.
A new innocent dissemination defence would also be created so intermediaries cannot be sued for content posted by third parties.
“To rely on the new defence, the digital intermediary must provide a simple and accessible complaints mechanism on their website so that individuals can report defamatory content,” Mr Rattenbury explained.
“If a complaint is received, the digital intermediary must take reasonable steps to prevent continued access to the content within seven days.”
It’s hoped other changes will also help address concerns that defamation laws act as a barrier to the reporting of sexual harassment and other criminal or unlawful conduct to authorities.
A blanket ‘absolute privilege’ section will be added to ensure victim-survivors and witnesses are confident they can speak with police and other statutory bodies without the threat of defamation.
Mr Rattenbury said concerns had been raised that this fear contributed to low reporting rates.
“Victim-survivors also report that alleged perpetrators may weaponise the threat of a suit in defamation, creating an additional deterrent to reporting,” he said.
“Absolute privilege provides a complete defence to defamation liability … and is intended to discourage alleged perpetrators from commencing or threatening defamation proceedings, or otherwise to ensure that courts can quickly dismiss proceedings.
“People should feel confident to come forward with complaints, without fear of being sued in defamation.”
As well as police, the privilege would apply to conversations and information shared with the ACT Human Rights Commission, the ACT Integrity Commission, the Inspector of Corrective Services, officers with the Work Safety Commission, the ACT Law Society and the ACT Bar Association, among others.
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