Australia: Defamation law reforms on the horizon for digital intermediaries

Published

Oct 25 2023

Written By

Julie Cheeseman

Partner
Australia

I am a partner in our Sydney office, where I specialise in media and technology disputes and advice.

James Hoy

Special Counsel
Australia

I am a Special Counsel in our Sydney office and I specialise in media and technology disputes and advice with a particular focus on privacy and data protection matters.

Madelaine Morgan

Associate
Australia

I am an associate in the Dispute Resolution Group in Sydney, specialising predominantly in commercial disputes.

Practices

On 22 September 2023, the Standing Council of Attorneys-General (SCAG) approved law reforms concerning digital intermediary liability in defamation for the publication of third-party defamatory content (among other things) as part of Part A of the Stage 2 Review of the Model Defamation Provisions (MDPs).

In short, the Part A reforms include (among other things):

two new conditional exemptions from liability for defamation targeting narrow classes of digital intermediaries – specifically:
- passive intermediaries in relation to publication of digital matter using a ‘caching service’, ‘conduit service’ or ‘storage service’ (each being a defined term in the draft legislation); and
- ‘search engine providers’ in relation to publication of automatically generated ‘search results’ or digital matter to which automatically generated search results provide a hyperlink (but excluding sponsored search results and autocomplete predictive text suggestions);
a requirement that judicial officers in defamation proceedings determine whether a…