NSW Websites and Apps Can Be Held Liable for Defamation Unless They Only Store Data and Block Access

Defamation Amendment Bill 2023

21 Nov 2023: Passed by Parliament and signed off by the governor.

This bill kicks in: TBA

Legislative Assembly

Legislative Council

Assent

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Topics

court procedures defamation digital intermediaries digital matter domestic violence internet intermediaries internet platforms legal liability online content privacy

Introduced by: Michael Daley MP (ALP); The Hon Daniel Mookhey MLC (ALP)

Links to official parliament websites

Official page: progress through parliament

Official page: bill text and explanatory notes

Effects of this bill

If this bill passes, it means that:

Digital intermediaries, such as websites or apps, are not liable for defamatory content if they can prove they only provided caching, conduit, or storage services and did not perform banned actions.
Courts can make orders against non-party digital intermediaries regarding defamatory digital matter
Courts must consider privacy, safety, and public interest before making orders against intermediaries; this includes whether a poster fears domestic violence
The defence of absolute privilege is updated for publications made to police officials
Courts can postpone deciding if a digital intermediary is exempt from liability; they must consider the cost to the parties and public interest, such as whether a poster fears domestic violence
Defendants in defamation cases are deemed to have taken reasonable steps to prevent access to digital matter if those steps were reasonable in the circumstances
Legal documents and notices about defamation can be served via email, messaging, or other electronic communications
Digital intermediaries must take reasonable steps to prevent access to defamatory content. This includes removing the content or blocking people from seeing it.

The Debate

What different members said when this bill was debated:

Susan Carter LIB

“I lead for the Opposition in debate on the Defamation Amendment Bill 2023. Our good name, our reputation, is one of the most valuable things we possess. This is as true for businesses as it is for individuals.”

Official source →

Sue Higginson GRN

“I indicate that The Greens will not be opposing the Defamation Amendment Bill 2023. Defamation laws are complicated and are continually walking a line between the rights of individuals to protect their reputation and media freedoms. Australia’s press freedom standing in the international community is, embarrassingly, quite low.”

Official source →

Cameron Murphy ALP

“I speak in favour of the Defamation Amendment Bill 2023, which brings much‑needed changes to our system of defamation law in New South Wales. Of course, defamation law arises out of the common law. Its job is to strike the important balance between protecting individual rights, the right to free speech and open discourse. People need to be protected from free speech, to some degree.”

Official source →

Mark Buttigieg ALP

“The bill enacts amendments to the Model Defamation Provisions that have been agreed by the majority of the Standing Council of Attorneys-General. That is the culmination of the stage two review of the Model Defamation Provisions that has been undertaken over the past couple of years.”

Official source →

News articles and press releases

Defamation Amendment Bill 2023

Mr MICHAEL DALEY, Attorney General — 2023-10-11

In summary, there are six key reforms: one, a conditional exemption from defamation liability for conduit, caching and storage services, and for search engines in relation to organic search results; two, updates to the mandatory requirements for an offer to make amends for online publications; three, a requirement for courts to consider balancing factors when making preliminary discovery orders against digital intermediaries; four, a new innocent dissemination defence for digital intermediaries, subject to a simple complaints process; five, a specific power for courts to make non-party orders against digital intermediaries to prevent access to defamatory matter online; and six, expanded electronic means by which notices can be served.