Defamation law reforms stage 2 — tips and traps for practitioners

Practitioners have been exposed to ’stage 1’ of the reforms to the Model Defamation Provisions in most Australian states and territories (except Western Australia and the Northern Territory) since July 2021.

’Stage 2’ of the reforms to the Model Defamation Provisions have now been enacted in Victoria with effect from 11 September 2024, as well as New South Wales and the Australian Capital Territory from 1 July 2024 and practitioners must ensure that they are across them.

One of the primary objectives of the stage 2 reforms is to limit the effect of the High Court of Australia's decision in Fairfax Media Publications Pty Ltd & Ors v Voller (2021) 273 CLR 346, especially with respect to what the reforms describe as ’digital intermediaries.’

In Voller, third parties left allegedly defamatory comments about Mr Voller on posts made on Facebook pages of three media organisations. The High Court found that these media companies could be sued in defamation as publishers of those third-party comments.

Under the stage 2 reforms, a person or entity will be a ‘digital intermediary’ if they provide or administer an online service (for example, a website or social media platform) where a defamatory digital matter is published, provided they are not the author, originator or poster of the matter.

In response to Voller, the reforms create a new defence for digital intermediaries who will not be liable in defamation if:

1. they prove that they have an ‘accessible complaints mechanism’ to receive written complaints about defamatory content on their online platform — for example, an email address or a complaints submission webpage
2. assuming the written complaint is in a form that complies with the applicable legislation, they prove that they took ‘reasonable access prevention steps’ to remove or block, disable or prevent access to any such matter within seven days of receiving the complaint.

This defence will be defeated if the digital intermediary is motivated by malice in providing the online platform by which the defamatory matter came to be published.

Separately, a digital intermediary providing caching, conduit or storage services will be exempt from liability if they publish any defamatory matter in the course of providing those services. The exemption will not be available to a digital intermediary that participates in, encourages or promotes the publication of the defamatory matter, unless they are required to do so by law or court/tribunal order.

A search engine provider will be exempt from liability under the stage 2 reforms if their search engine does nothing more than publish or hyperlink to a defamatory matter as part of its automated search results. However, the exemption will be unavailable if the search engine provider was paid or otherwise derived a benefit from promoting or prioritising the search results in question.

The exemptions draw on the findings of the majority of the High Court in Google LLC v Defteros [2022] HCA 27, where Google was found to not be a publisher of a defamatory news article by reason of its search results including a hyperlink to that article.

The exemptions for digital intermediaries may be determined by a court as a preliminary point.

The stage 2 reforms also expand the defence of absolute privilege so that it now applies to reports to police of alleged criminal conduct. Previously, the defence of qualified privilege was available for reports made to police.

This reform is intended to provide greater comfort to persons making reports to police, in that they will not be liable in defamation if they make a police report about someone.

Practitioners advising clients who are the subject of a police report should be mindful of this reform, as it stands to provide the person making the report with a complete defence to any potential defamation claim.

A common trap for practitioners acting in defamation matters is ineffectively serving notices (most relevantly, Concerns Notices) prescribed by the applicable defamation legislation. Ineffective service of a Concerns Notice can have significant repercussions for a client's defamation claim.

Under the stage 2 reforms, a notice can be validly served electronically by sending it by email, messaging or another electronic communication service to an address or location the recipient has indicated as being for the giving or serving of documents on them.

Practitioners should adopt a cautious approach when serving notices for the purposes of defamation legislation in Australia — it remains best practice to serve any such notice personally, with the next best option being to serve it by registered post (retaining the tracking information) at the recipient's specified address for service or if that is unknown, their last known residential or business address.

At the time of writing, defamation laws are not presently uniform across Australia, so practitioners should be mindful of the jurisdiction that applies when advising clients on defamation issues.

New South Wales and the Australian Capital Territory enacted the stage 2 reforms with effect from 1 July 2024, with Victoria doing so with effect from 11 September 2024.

Tasmania has introduced the Defamation Amendment Bill 2024 (Tas) seeking to enact the stage 2 reforms, while Queensland has not yet commenced any process to enact those reforms.

South Australia is in the process of enacting some, but not all, of the stage 2 reforms — most notably, the reforms do not presently include any statutory exemptions or defences for digital intermediaries.

By contrast, Western Australia and the Northern Territory have not enacted the stage 1 reforms, let alone the stage 2 reforms.

Practitioners must therefore be careful to ensure they are applying the correct defamation law to their client's matter. If a client can pursue a claim in defamation in multiple Australian jurisdictions, practitioners should consider the advantages and disadvantages of doing so in each jurisdiction.

Now that practitioners have had time to adjust to the stage 1 reforms, practitioners are also reminded of the following key matters when advising clients in relation to defamation claims.

• Always consider at the outset whether the publication in question has caused ‘serious harm’ to the client's reputation (or ’serious financial loss’ with respect to eligible corporations). The ‘serious harm’ threshold means that practitioners can no longer rely on the presumption of damage to reputation in pursuing defamation claims.
• Ensure any Concerns Notice satisfies the specific requirements set out in the applicable defamation legislation, including to provide proper particulars of the publication in question, the defamatory imputations said to arise from it and the serious harm those imputations cause to the person's reputation (or financial loss with respect to eligible corporations).
• Issue a valid Concerns Notice before commencing proceedings wherever the stage 1 reforms have been enacted or otherwise apply - the Western Australian Supreme Court found this to be substantive requirement (rather than a procedural matter capable of being excused) in Aguasa v Hunter [2024] WASC 380 (applying New South Wales defamation law).
• Ensure any Concerns Notice is validly served, noting strict compliance with the prescribed legislation is required. Best practice is to have it personally served.

For a further refresher of the traps arising from the stage 1 reforms, see our article here.

Christien Corns is a partner and Sam Rappensberg is a Senior Associate at K&L Gates.