Defamation and digital intermediaries: don’t get caught in the middle
Australia connected to the internet in June 1989 and ever since, the law of defamation has been struggling to catch up. In addition to providing a new domain for Australians to defame each other, it provided us with something much worse – the ability to broadcast defamatory content to our friends, family and work colleagues anonymously.
The long awaited ‘Stage 2’ defamation reforms have sought to address the historical inability of people who have been defamed by online ‘trolls’ to take action to protect their reputations. Now that these reforms are trickling into force in the various states and territories, it’s important to make sure you’re taking the necessary steps to avoid being caught in the crossfire as a ‘digital intermediary’ of defamatory content posted by others.
When it comes to asserting legal rights, you can’t sue someone unless you know who they are and how they can be served. As a way of dealing with this challenge in the digital environment, defamation plaintiffs started suing the people and entities they did know, referred to as digital intermediaries. While this most obviously includes large social media companies and platforms, it also includes the person who runs the school parent WhatsApp chat or the volunteer who runs the website or Facebook page for a local sports association.
The zenith of this issue was the High Court’s decision in Fairfax Media Publications Pty Ltd & Ors v Voller (2021) 273 CLR 346. Mr Voller, having been defamed by anonymous ’trolls’ on Facebook pages administered by mainstream media outlets, sued those media outlets on the basis that they were liable as publishers of the content. The High Court accepted this argument, thereby potentially exposing any person or entity who administers a social media page, or other platform where third parties can publish material, to the risk of being sued for defamation.
The Voller decision has significantly impacted free speech and open dialogue since it was handed down in 2021. In particular, you may have noticed that the ability to comment on news and opinion articles has been turned off or restricted, which has moved people towards the foreign based social media platforms to participate in open debate with potentially harmful results.
To strike a better balance between protecting reputations and not unreasonably limiting freedom of expression, the Council of Attorneys-General agreed on proposed national reforms to the defamation legislation in each state and territory that creates a new defence for digital intermediaries. In order to qualify for the defence, digital intermediaries need to take steps to enable defamed persons to address the harm of defamatory content. These are outlined further below.
These reforms are now part of the law in New South Wales, Victoria and the Australian Capital Territory. South Australia has indicated it won’t implement the new defence, while the remaining jurisdictions are yet to introduce legislation that will bring it into force. This represents yet another step away from a consistent national defamation law and leads to the absurd situation where publications can give rise to actionable claims in some states and territories but not others.
Even if your jurisdiction hasn’t yet implemented the defence, we recommend taking the necessary steps now in anticipation of its enforcement and as a best practice to reduce potential risk.
Another aspect of the reforms is that courts are now able to make orders against digital intermediaries to give effect to judgments in defamation proceedings, even where those digital intermediaries are not parties. This provides an additional means of enforcement for successful plaintiffs, particularly where the defendant(s) are refusing to comply with court orders.
The defence applies to ‘digital intermediaries’, defined as a person, other than an author, originator or poster of the relevant publication, who provides or administers the online service by means of which the matter is published. This captures each of the examples outlined earlier, including owners and administrators of social media accounts. It’s also important to note there can be more than one digital intermediary relating to the same content.
The steps a digital intermediary needs to take to attract the new defence are:
- Put in place an accessible complaints mechanism for defamation plaintiffs to use. This can be as simple as an email address or direct messaging address where a complaint can be sent, or it could be a webpage, or a part of a webpage, enabling details about a complaint to be uploaded or inputted.
- Take reasonable steps to restrict access to defamatory content following receipt of a complaint. To meet this requirement, reasonable steps to prevent access must be taken within seven days of receiving a complaint. These can include taking down the relevant content or otherwise blocking or disabling the content from being viewed by others.
From a potential plaintiff’s perspective, a complaint to a digital intermediary must identify who they are, the relevant matter they are complaining about, where it’s located and the reason why the person considers the content to be defamatory.
A potential downside of this new regime is that digital intermediaries are incentivised to act on all complaints made to them, irrespective of the merits of the complaint. This could result in a situation where prospective complainants can use the system to remove justified criticism about them or matters that wouldn’t otherwise satisfy the elements of a cause of action for defamation. In implementing the reforms, it’s apparent that state and territory governments have formed the view that the potential for misuse outweighs the current chilling effect that the Voller decision is having on digital content. Whether that balance bears out in practice remains to be seen.
If you would like to discuss how you or your business can put in place the necessary complaints mechanisms to manage risk as a digital intermediary, please get in contact with us. Additionally, it’s crucial to monitor this system in real time to ensure compliance with the 7-day response timeframe mentioned above.
The article was written with the assistance of Keshi Moore, Seasonal Clerk.
