By: Richard Leder, Georgie Austin, Blake Pappas, Zoe Burchill and Isabella Antonino

At a glance

The Stage 2 Defamation Reforms, building on Australia’s national Model Defamation Provisions, focus on addressing defamation in digital contexts and protecting those reporting criminal conduct.

Key aspects of the Stage 2 reforms include:

Part A amendments: Targeting defamatory content published online, focusing on digital intermediaries, including social media platforms, along with exemptions for intermediaries who play a passive role in publishing content.

Part B amendments: Provide immunity for defamatory material reported to the police, removing barriers to reporting criminal misconduct and extending protections to other complaints-handling bodies.

While several jurisdictions have enacted these reforms in line with the proposed timeline, other states are still in the process.

The need for uniformity across the states and territories remains crucial, and future reforms, particularly concerning artificial intelligence, are anticipated as the legal landscape evolves.

Background

In a bid to bring uniformity to the defamation landscape in Australia, a national framework was established in 2005 providing a unifying set of Model Defamation Provisions (the Model Provisions). The Model Provisions were to be implemented in two stages, with each state and territory responsible for enacting mirroring legislation in line with the national scheme.¹

In 2018, the former Council of Attorneys-General convened a Defamation Working Group (DWG) to review the Model Provisions. Stage 1 of the review, led by New South Wales, was conducted in 2019, approved in July 2020 and implemented on 1 July 2021 (Stage 1 Reforms). The Stage 1 Reforms established new statutory defences (including the public interest defence), mandated the serving of a Concerns Notice prior to the commencement of defamation proceedings and introduced the single publication rule and an additional ‘serious harm’ element for defamation actions.

Stage 2 of the review of the Model Provisions, led by New South Wales and Victoria, commenced in 2021 and, following a period of public consultation and reconvening of the DWG, on 22 September 2023, the Standing Council of Attorneys-General (SCAG) approved further amendments to the Model Provisions (Stage 2 Reforms). At this same meeting, a majority of the states and territories committed to using their ‘best endeavours’ to enact the Stage 2 Reforms by 1 July 2024.

As the deadline for implementation has now elapsed, this article provides an overview of the amendments contained in the Stage 2 Reforms, a status update with respect to their enactment, and a discussion regarding the need for uniformity.

What are the Stage 2 Reforms?

Part A amendments

Part A of the Stage 2 Reforms target the publication of ‘digital matters’ and focus on the position of online intermediaries where defamatory material is published on the internet, including on websites, social media platforms and in search engine results. The increasing number of defamation claims relating to online publications, and the High Court decision in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, highlighted the need for this reform.

The Part A amendments aim to strike a balance between the need to provide remedies for persons whose reputations are harmed by defamatory publications and the need to ensure defamation laws do not unreasonably restrict freedom of expression, particularly in the digital age.

The Part A amendments include, but are not limited to:

Definition of ‘digital intermediary’: A digital intermediary is a person or entity who provides or administers the online platform on which defamatory material is published, but who is not the original author or poster of that material. This definition captures social media platforms including Facebook, Instagram and X (formally Twitter).

Statutory exemptions from liability: An exemption from liability for a digital intermediary for the publication of defamatory material if:

• the intermediary is a ‘passive service provider’ (e.g. an internet service provider or cloud storage provider) which provides caching services, conduit services or storage services and does not play an active role in the publication of the material, including by initiating, promoting or editing the material, or
• the intermediary is a search engine provider performing standard functions (not including paid content, advertising or sponsored search results) which is unable to remove the defamatory material and has no interest in the material or relationship with the author of the material.

Defence for digital intermediaries: A new defence to the publication of defamatory material is available to digital intermediaries if they can prove they have an accessible complaints process for removal of content (e.g. an email address or complaints form), have received a written complaint which meets the statutory requirements and took reasonable steps to prevent access to the defamatory content either before the complaint was received or within 7 days of receipt.

Offers to make amends: Digital intermediaries are permitted to make offers to make amends which do not include an apology, clarification or correction, where such actions are not possible or appropriate in the circumstances.

Court powers: The Court has the power to order non-parties to proceedings (after notice in advance) including digital intermediaries to take access prevention steps, which are necessary to prevent or limit defamatory material from being published or republished.

Part B amendments

The Part B amendments aim to protect victim-survivors from the threat of a defamation action if they report alleged criminal conduct, unlawful conduct or misconduct to the police.

Prior to the Stage 2 Reforms, the defence of absolute privilege did not generally apply to publications of defamatory material to police. Complainants could only rely on the defence of ‘qualified privilege’ which is defeated if the complainant was actuated by malice or deemed to have used the occasion for an improper purpose.

The Part B amendments would provide a complete immunity for defamatory publications made to police while acting in their official capacity, with the intention of removing a common barrier to the reporting of misconduct. The Part B amendments also provide guiding principles for how absolute privilege may extend to defamatory material published to other complaints-handling bodies.

Current status of the Stage 2 Reforms

The current status of the Stage 2 Reforms for each jurisdiction is set out below:

Importantly, Western Australia and the Northern Territory are still yet to adopt the Stage 1 Reforms enacted by the other states and territories in 2021.

The need for uniformity

In the absence of national uniformity, plaintiffs remain able to ‘forum shop’ and bring defamation actions in their preferred jurisdictions. Putting the Stage 2 Reforms to one side, online publishers are already grappling with state-based inconsistences arising from the Stage 1 Reforms, as plaintiffs continue to commence proceedings in Western Australia and the Northern Territory without the need to issue Concerns Notices.

The SCAG has indicated that a review of the Stage 1 and Stage 2 Reforms is likely to occur in 2027. Given there are clear signals of further state and territory fragmentation as the Stage 2 Reforms are considered, adopted and implemented, it will be interesting to see if the SCAG entertain the idea of Commonwealth intervention, particularly with the Federal Court of Australia operating as the preferred forum for plaintiffs over the past few years. Notable high-profile cases where the plaintiff elected to issue in the Federal Court rather than a state court include the claims brought by Ben Roberts Smith, Bruce Lehrmann, Heston Russell and Moira Deeming.

Irrespective, it is important to recognise that the Model Provisions were endorsed prior to the emergence of Artificial Intelligence software such as ChatGPT, Microsoft Copilot and Meta’s Llama. Given the Stage 1 and 2 Reforms make no provision for these types of platforms, it is foreseeable that, even in the event the Model Provisions are universally adopted (which remains to be seen), defamation law will require further, substantial reform to keep pace with these disruptive technologies.

Our experienced Commercial Litigation team can provide tailored advice on defamation or the implications of the Reforms on your business. Please get in touch with our authors to discuss how we can support you.

^[1] Defamation Act 2005 (Vic), Defamation Act 2005 (NSW), Defamation Act 2005 (Qld), Defamation Act 2005 (SA), Defamation Act 2005 (WA), Defamation Act 2005 (Tas), Civil Law Wrongs Act 2002 (ACT), Defamation Act 2006 (NT).