NSW Introduces Reforms to Provide Online Platforms with Increased Protections Against Defamation
By adopting the new laws, media companies can now rely on a new defence for digital intermediaries who ‘innocently disseminate’ defamatory content.
The New South Wales (NSW) government has embraced changes to its Defamation Amendment Act 2023, making NSW and the ACT the first jurisdictions in Australia to modernize defamation laws.
These changes aim to enhance the balance between freedom of speech and protection of reputation for individuals publishing content through a digital intermediary.
Digital intermediaries include social media platforms, search engines, review websites, service providers, and content hosts. Forum administrators, who use online platforms to host forums inviting third-party commentators, are also covered under these changes.
This move follows the High Court’s decision in the Fairfax Media Publications v Voller case, where several media companies acting as forum administrators were involved.
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Media companies, serving as forum administrators, can now utilize this new defence when users inadvertently share defamatory content on their platforms.
Recognizing that many forum administrators are everyday individuals, such as parents hosting Facebook pages for school-related discussions among parents, the new defence provides a safeguard.
Forum administrators can also rely on the innocent dissemination defence if any forum member posts defamatory content on their respective Facebook pages.
To access this defence, forum administrators must provide their email address or other accessible means for reporting defamatory content.
Furthermore, the legislative reforms will simplify the process for victims of online defamation to file complaints against digital intermediaries.
If a digital intermediary fails to remove defamatory content within a week, they forfeit the innocent dissemination defence.
The legislation, implemented through Part A of the Stage 2 Review of the Model Defamation Provisions, is spearheaded by the NSW government.
The Act’s changes will also extend the absolute privilege defense to reports submitted to the police, such as sexual assault complaints, to address any negative impact defamation proceedings could have on a complaint.
Attorney General Michael Daley acknowledged the digital age’s prevalence in society, emphasizing the necessity for laws that reflect the modern world.
Mr. Daley stated, “It is crucial that our laws align with our current environment to address the challenges posed by the rapid dissemination of defamatory information online and clarify legislation for complainants and publishers.”
He underscored the significance of maintaining democracy for Australians to freely exchange ideas and opinions while balancing freedom of expression with reputation protection.
