Defamation change for digital platforms?

Denham Sadler
Senior Reporter

New defamation laws have been given the green light to be implemented by mid-2020, but more significant changes that would see digital platforms treated like publishers have been deferred for more consultation.

The Council of Attorneys-General agreed on Friday to new draft amendments to defamation laws, going ahead with all changes suggested earlier this year – apart from one that addressed digital platforms.

The responsibilities and liability of tech giants for defamatory content published on their platforms will now be the subject of a second stage of review due to its “extremely complex” nature.

Federal Attorney-General Christian Porter has previously said that he believes digital platforms should be treated as publishers when it comes to defamation law, meaning they would be liable for content posted by their users.

This would mark a major change in Australian law and would be a huge threat to tech giants like Facebook.

Draft amendments to the Model Defamation Provisions, legislation agreed to by state, territory and federal governments in order to keep defamation law uniform across Australia, were released late last week.

The changes would introduce a serious harm threshold for defamation, a single publication rule, make it mandatory to issue a concerns notice, a new defence for peer-reviewed statements and assessments in scientific and academic journals, and allow for aggravated damages to be awarded separately to damages for non-economic loss.

These changes “strike a balance between the need to provide fair remedies for a person whose reputation is harmed by a publication and the need to ensure defamation law does not place unreasonable limits on freedom of expression”, the attorneys-general said.

The NSW government is leading the reforms, and will accept submissions on the draft amendments until 24 January, with a plan for the changes to be introduced to Parliaments around the country by mid-2020.

The second stage of these reforms are likely to generate more controversy, with plans to change how responsible digital platforms are for content posted for users. The debate will also be informed by the ACCC’s inquiry into digital platforms and the federal government’s response to its recommendations.

“The Defamation Working Party will consider both the ACCC report and the Commonwealth government response as part of its policy development and further consultation on these issues,” the communique said.

The second stage of reform will look at whether existing protections like innocent dissemination are good enough and whether a safe harbour provision or take-down procedure are needed.

In a speech last month, Mr Porter said that he believes digital platforms should be held responsible for content posted by users in the same way as traditional publishers.

“My own view is that these online platforms should be held to essentially the same standards as other publishers but that how this should occur requires a sensible, measured approach to reform taking into account the differences in the volume of material hosted between Twitter or Facebook and a traditional newspaper, for instance,” he told the National Press Club in November.

“But what is clear is the playing field between online publishers such as Facebook and Twitter and traditional media publishers reform in this area is very necessary.”

The tech giants will likely lobby heavily against this proposal in the months to come.

In a submission to government on the initial defamation law changes, tech industry group DIGI, whose founding members include Facebook and Google, positioned these digital platforms as “online intermediaries” rather than publishers.

“Internet intermediaries should benefit from a protection from a defamation suit where they are not themselves the original creators of defamatory material that they host, at least until a court has issued a ruling adverse to the original creators and a specific breach of the ruling is brought to the intermediary’s attention,” the DIGI submission said.

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