Aussie attorneys-general considering blanket defamation immunity for digital platforms

Australia's attorneys-general have released a new discussion paper focused on updating the country's defamation laws so that they take into account the role of digital platforms in distributing and displaying online content.

The release of the discussion paper [PDF] follows the attorneys-general in July last year agreeing to amend Australia's defamation laws to better protect people from defamation in a digital world. These amendments came in the form of the Defamation Amendment Bill 2020, with New South Wales, South Australia, and Victoria set to enforce the new laws in three months' time.

When the attorneys-general worked on updating these laws, the Australian Competition and Consumer Commission, through its Digital Platforms Inquiry, found that the functions of digital platforms needed further reform in the areas of competition law, media regulation, and privacy law.

In light of these findings, the attorneys-general agreed to undertake a second stage reform process, focusing on the responsibilities and liability of digital platforms for defamatory content published online. The decision to undergo a second stage of review has culminated in the latest discussion paper, which tables questions focusing on the liability of internet intermediaries when publishing third-party content in a defamation context.

Among those questions are whether the grouping of internet intermediary functions into the three categories -- basic internet services, digital platforms, and forum hosts -- is actually a useful and meaningful way for determining which functions should attract liability; what the threshold should be for obtaining an order to compel entities to remove online content for defamation purposes; and what is the best way to categorise basic internet services, digital platforms, and forum administrators.

The attorneys-general are also contemplating whether it is necessary to provide any forms of immunity from liability in defamation for the various categories of internet intermediaries. Namely, the working group has asked whether internet intermediaries should be treated the same as any other publisher for third-party content under defamation law and whether a blanket immunity should be provided to all digital platforms for third-party content, even if they are notified about it, unless they materially contribute to the publication.

Throughout both stages of reform, internet intermediaries have told the attorneys-general that they cannot be aware of all the content posted by third parties on their webpages and should be protected from defamation charges, the discussion paper said.

"Some submissions argued that internet intermediaries should not be required to remove content without a court order, because they are not in a position to assess whether content is defamatory. The concern is that they may be inclined simply to remove content to avoid potential liability, which would have a chilling effect on freedom of expression," the attorney-generals wrote in the discussion paper.

Elsewhere in the discussion paper, the working group said it is also seeking advice on how best to implement a new complaints notice process and orders that compel an internet intermediary to disclose the identity of a user who has posted defamatory material online.

In raising these questions, the attorneys-general said it is seeking consultation on these issues. Submissions to the discussion paper are being accepted until May 19.

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