Australia’s defamation laws - McCullough Robertson

Australia’s defamation law space is one to watch

In the latter half of 2020:

pending the next Voller[1] appeal decision, news media providers will find out if they will continue to be liable for defamatory third party comments on their social media pages (and the scope of any potential defences);
the ultimate outcome of Kabbabe[2] may see American social media conglomerates (Google, Instagram, Facebook) forced to divulge personal information about keyboard warriors who have used digital platforms to defame others;
Geoffrey Rush’s history-making defamation damages payment this June may contribute to capped damages reforms in upcoming federal defamation law overhaul; and
after extensive public consultation, the Defamation Working Party’s law reforms (led by New South Wales) were announced on 27 July 2020 and each state and territory is now expected to take steps to swiftly enact the Model Defamation Amendment Provisions 2020 as part of the first phase of reform.

Despite this traction, Australia is still only on the precipice of a defamation law ‘digital makeover’. Until seminal cases have exhausted their appeals, and reforms are introduced and tested, uncertainty lingers about who is liable for what kind of defamatory statements and just how much could defamation cost you?

As such, during this state of limbo, media industry stakeholders – news media houses, social media platforms, Australian businesses using digital platforms to promote their company and its offerings and those prone to making risky comments on the web – should take steps to help protect against defaming people under the law as it currently stands, as well as giving consideration as to how defamation law may look by the end of 2020 (and the impact that the changes to the Model Defamation Provisions will have).

Liability for third party comments on your social media pages – the Voller saga continues

The latest New South Wales Court of Appeal decision in Voller confirms news media platforms are, broadly, ‘publishers’ of third party defamatory comments on their social media pages for the purposes of the Defamation Act 2005 (NSW). While this satisfies a crucial element of defamation, another appeal is yet to determine whether defences are available to protect against liability for the defamatory slander by third parties in such circumstances. If defences are ultimately dismissed, the floodgates for defamation liability may open, and not just to news media companies, but any person or business that runs a public social media page which allows user generated content (including comments) to be shared.

Key takeaways: If you run a business in 2020, it is likely you also run active social media pages across a number of digital platforms. While removing these social media pages, making them private or disabling public comments will decrease risks of defamation claims, these options can be highly uncommercial for business – particularly in light of changing consumer engagement models as a result of COVID-19. Our practical suggestions for alternative ways to address the risk include:

ensuring your business has internal social media policies and procedures for your business development, marketing social media teams. These policies and procedures should include:

- a clear moderation policy, including how often content should be reviewed, and information about any filters which have been automatically applied, or should be manually applied by reviewers. These filters could include key words or phrases which are high risk;
- guidance for identifying other defamatory (or potentially defamatory) material;
- steps to be taken when that material is identified – whether that means immediate removal, or escalation to a member of the legal team for prompt further investigation. If material is to be removed, the policy should also provide guidance to ensure your team are only removing the affected comments (as opposed to negative comments about your business, for example, which, if removed, can amount to misleading or deceptive conduct under Australian consumer law);

keeping the moderation policies refreshed. For example, if defamatory material which is identified relates to a ‘hot topic’, consider whether additional filters / key words should be added to your moderation policy (either temporarily or on a longer-term basis). This will ensure that your moderation policy remains as easy to implement as possible; and
providing regular training (including refresher training and training for new team members) to ensure that the application of the policy is clearly understood, and consistently applied.

For more information about defamation in the social media context, including the types of statements found to cause a defamatory imputation, parties who are publishers, and the scope of damages, see the Defamation: the Social Media, Social-distancing Edition article written by Special Counsel, Rebecca Lindhout.

The anonymity of keyboard warriors may soon come to an end

The ultimate outcome of the recent Kabbabe v Google LLC case may disrupt Australia’s defamation laws, and consequently the anonymity of keyboard warriors, in big ways.

In that case, an anonymous person left an arguably defamatory Google review about Dr Matthew Kabbabe’s Melbourne dental practice on Google. Kabbabe asked Google to remove the review. Google refused. Kabbabe then asked Google to provide information about the reviewer. Google refused again, arguing it did not have any means to investigate where and when the reviewer’s ID was created. Consequently, Kabbabe sought leave from the Federal Court of Australia to file an originating application on Google in the United States compelling Google to disclose details about the reviewer so that Kabbabe may bring defamation proceedings against them. The Federal Court granted Kabbabe leave to serve the discovery request on Google.

This decision is insightful for a number of reasons:

firstly, because Google was incorporated in America, and America is a signatory to the Hague Service Convention, the Federal Court allowed the service. This is important because the majority of digital platform and social media giants have their headquarters incorporated in America. It follows that Australian courts may grant leave for applicants to request discovery from, for example, Facebook and Instagram about people behind anonymous accounts or fake accounts who make defamatory comments; and
secondly, the Federal Court considered it had jurisdiction to grant leave for the application because, by virtue of the review being left on the internet, it was accessible to each state and territory within Australia.

Key takeaways: If the Kabbabe case ultimately results in successful defamation proceedings, those leaving anonymous reviews online may need to critically moderate their comments on others’ Google accounts or social media pages. Helpfully, people who consider they have been defamed through comments on digital platforms may now have a course of action to compel American digital platforms to take down defamatory reviews. For the online platforms, however, the decision is unlikely to be looked on favourably given the time and resources which they would be required to devote to dealing with such requests for information, and the impact it may have on the way individuals (and companies) use their platforms.

For more information about the Kabbabe case, please see our recent article Anonymous reviewer cannot hide behind international borders.

Defamation law reforms are finally here (or at least near)

The particular developments in defamation law canvassed above come in the context of a number of recent Australian decisions regarding the liability of online media platforms – particularly Google – for defamatory material available on their platforms.[3] While developments in that area are still in progress (it is hoped there will be a further working paper by the end of the year), there is some positive news on the reform-front.

After extensive public consultation, the Model Defamation Law Working Party has released long-awaited reforms to the existing Model Defamation Provisions. These reforms, the first in the defamation space since 2005, could restrike the balance between an individual’s reputation and the right of a free and fair press, and generally bring Australia’s defamation laws into the digital age. They include:

the introduction of a ‘single publication rule’ which will dramatically reduce news media entities’ exposure to defamation claims for archived stories. Currently, the limitation period for defamation proceedings resets every time a defamatory statement is ‘published’ – which currently occurs every time a reader views or downloads a news story online. This essentially results in an unlimited period during which defamation claims can commence in respect of such content. Instead, the limitation period will commence at the first publication (for online works, the time the work is uploaded);
the introduction of a ‘serious harm’ threshold. This threshold will need to be satisfied as early as soon as practicable in the proceedings before the trial to filter-out insignificant claims at an early stage. This amendment will mean the defence of ‘triviality’ is no longer required, as the burden of proof relating to the seriousness of the harm will shift to the plaintiff;
requiring the aggrieved person to issue a ‘concerns notice’ to the publisher of the material before defamation proceedings are commenced. In addition to these notices becoming mandatory, the information to be included will be more detailed to better allow a publisher to assess the merits of the claim at an early stage. The publisher can offer to make amends, which (if reasonable and compliant with certain requirements) may impact the defences available to the publisher or the ability of the aggrieved person to commence proceedings. The intention is to provide an opportunity for the publisher to make amends and ‘right the wrong’ in the hope of avoiding proceedings altogether or ending them as early as possible during proceedings (even once a trial has commenced);
greater clarity on the damages for non-economic loss, with values to be expressed in ranges based on seriousness, rather than caps on liability; and
a new defence to provide better protection for publication which is a matter of public interest, similar to the current United Kingdom model. When announcing the reforms, New South Wales Attorney-General Mark Speakman noted that the new defence is intended to restore ‘balance to ensure reputations are protected while responsible speech is as free as it needs to be to shine lights into the dark corners of our society’.

Final thoughts

2020 (or 2021) will finally see Australia’s defamation laws upgraded to deal with the new digital world, both in case law as well as in legislation. There are further reforms on the horizon too, dealing with liability of online platform providers such as Google, and many hope reforms will address issues raised by the Voller decisions. In the meantime, those whose business activities expose them to defamation claims should be keenly aware of the high financial risks (and impacts on reputation and resources) these claims pose. Businesses should also be aware of the ever-increasing avenues by which liability may arise, and should implement appropriate policies and procedures to help mitigate this risk as outlined above.

[1]Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.

[2] Kabbabe v Google LLC [2020] FCA 126.

[3] For example, Defteros v Google LLC [2020] VSC 219.