If you’ve ever thought that defamation law has nothing to do with your business, think again.
In the pre-digital era, defamation — the publication of material that has a negative impact on the reputation of an identifiable person — was largely limited to journalists, editors and publishers of newspapers and magazines.
Today, however, as life and business move increasingly online, there are more ways to publish content than ever before. All publishers, regardless of sector, can be exposed to digital defamation complaints — which means you, your staff and your organisation could be at risk.
“We’re all online publishers now — if we’re sending emails, if we’re engaging online, especially if we’ve got a business with a website, then we’re publishers in the eyes of the law,” says Dr Sacha Molitorisz, a Senior Lecturer at the UTS Faculty of Law.
Keeping pace with digital disruption
This increase in digital risk was the driving force behind a review of Australia’s defamation laws that commenced in 2018, leading to a series of law reforms that started rolling out across the country in 2021.
“The key question was, is defamation law fit for purpose in this digital environment?” says Professor Derek Wilding, Co-Director of the Centre for Media Transition, one of Australia’s leading institutes in the field of digital disruption and law reform.
“These reforms also enabled a broader rethink of the purposes of defamation law and whether the balance was right in terms of the protection of people's reputations and encouraging freedom of expression.”
One of the most significant reforms in this first stage of activity was the introduction of a serious harm test, which requires complainants to demonstrate a threshold level of harm in order to have a defamation case heard before the courts.
Other changes, including the introduction of a public interest defence, clarification of the cap on damages, and clarification of the limitation period for defamation claims, have generally been good news for businesses who publish content.
“These changes will assist businesses by preventing some claims that might be made against them, reducing their liability in some situations, and giving them a means of defending claims in other situations,” says Professor Wilding.
A comprehensive program of law reform
A second suite of reforms are set to kick in as of July 1 this year, and this is where things get a bit murky. The key change in this second stage is around the role and legal responsibilities of ‘digital intermediaries’ — that is, online actors who store, retrieve and host information on behalf of individuals or companies.
Previously, these intermediaries could be held liable for third-party activity; for example, in some circumstances, Google could be liable for presenting search results that contained defamatory information, or Facebook could be liable for comments made by its users.
The 2024 reforms will provide a defence of innocent dissemination that will protect intermediaries provided they take steps within seven days to respond to complaints of defamatory material. Organisations of all sizes who meet the definition of digital intermediary will be protected by this defence — as long as they do their groundwork first.
“The innovation in the law is that it will require publishers to establish a complaints mechanism so that people who do have a complaint about those third-party comments can actually lodge it,” says Professor Wilding.
“Then it requires them to take action within seven days to provide a reasonable response to this claim of defamatory material. So, while it's good in the sense that it provides a usable defence, it will require those organisations that want to access it to put the right systems in place.”
Proceed with caution: understanding your organisational risk
While these law reforms are likely to benefit businesses, their rollout is set to be complicated. While all states have agreed to use their ‘best endeavours’ to pass this latest round of reforms by 1 July this year, only two — NSW and the ACT — have actually done so.
That means Australia’s previously uniform defamation landscape is now a mishmash of different rules and requirements, muddying the waters for businesses who are trying to do the right thing.
The best advice? Study up on your organisation’s risk profile, establish the necessary systems, and proceed with caution.
“Defamation actions often go badly for both plaintiffs and defendants because of the costs involved, but also the nature of the evidence that is revealed in court can often harm the reputation of the people involved,” says Dr Molitorisz.
“Whether you're going to win or lose a lawsuit, just being involved in court proceedings is something to try to avoid.”
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Get your head around your organisation’s defamation risk with Defamation and Digital Publishers: How to Navigate Legal Risk, an online short course from UTS Open. Developed by leading educators and researchers at the UTS Centre for Media Transition, this course will prepare you to future-proof your business in a changing defamation landscape. |
