3 Oct 2024Changes to online defamation laws in NSW and the ACT came into effect in July 2024. The new law is designed to improve the balance between freedom of speech and the protection of a person’s reputation when someone publishes adverse comments online.
“Innocent dissemination” a new defence for online defamation
The NSW Defamation Amendment Act 2023 provides a new defence for online forum administrators, including news media companies, discussion groups for local sports or social clubs, hosts who run Reddit communities or Facebook groups, search engines like Google, major media companies and businesses which allow third-party comments on their website content.
Under the new defamation law, these forum administrators may be able to rely on a new defence of “innocently disseminating” defamatory comments made by outsiders who post on their site.
High Court decision left administrators liable for online defamation
The reforms follow the High Court decision in the landmark 2021 case of Fairfax Media Publications v Voller. The High Court found Fairfax and two other media companies were publishers of defamatory comments posted on their social media pages by readers responding to their news stories about Dylan Voller.
It meant businesses and even individuals who run a website for a local sport club or social club could be legally liable for defamatory comments posted by anyone who visited the site.
But the High Court ruling did not clarify whether there was a defence of innocent dissemination if the publisher was not aware of the defamatory material before it was published, or lacked editorial control of it.
New legislation clarifies defence for online defamation
The new NSW legislation clarifies that publishers in NSW courts now have a defence of innocent dissemination if someone posts defamatory comments on their website.
To use this defence, the forum administrator must provide easy access for people to complain about defamatory content, for example by providing an email address for the site administrator. If the administrator does not take down the comment within seven days, they may not be able to use the innocent dissemination defence.
Victims of online defamation also benefit by having a way to complain and get the comments removed. Courts can now order administrators of forums such as Facebook, which are not party to defamation proceedings, to take down defamatory content.
Legislation strives for balance between freedom of speech and protection of reputation
The new law is intended to allow the exchange of ideas and opinions online, while protecting people from the ugliness and harm caused by defamatory comments. (Please see New defamation legislation aims to provide better protections for online communities in NSW and ACT, ABC News, 7 July 2024.)
It will encourage administrators to keep a close watch on comments posted on their websites and remove anything that may be defamatory.
NSW Attorney-General Michael Daley said the new laws aimed to address challenges of the “rapid spread of defamatory information online” and clarify the law for both complainants and publishers. (Please see Landmark laws to protect people caught up in digital defamation, NSW Government, 1 July 2024.)
“It was essential to strike a balance between not unreasonably limiting freedom of expression in circumstances where third parties publish defamatory matter via digital intermediaries and protecting reputations,” Mr Daley said in a statement.
