Implementation of THE NEW digital DEFAMATION FRAMEWORK

Australian defamation law has undergone a sustained period of reform, driven by the challenges of digital publication. Traditionally developed for newspapers, magazines, and broadcasters, the law has been increasingly tested by social media platforms, online forums, and user-generated content.

Courts and legislators have been forced to confront whether operators of online systems – search engines, forums, and hosting services – can be treated as publishers, and how liability should be allocated in circumstances where the content was created by third parties.

Two strands of reform have been particularly significant in recent years.First, the introduction of a statutory public interest defence as part of the Stage 1 defamation reforms implemented in 2021.Second, the introduction of a statutory notice-based defence framework for digital intermediaries under the Defamation Amendment Act 2023 (NSW).

Together, these reforms reshape the intersection of public commentary, media operations, and the protection of reputation in Australia.

Historical Origins and Key Moments

At common law, liability for defamation has always turned on publication. Traditionally, this required deliberate dissemination of content by an author or publisher. Courts generally distinguished between primary publishers and mere conduits or distributors, with liability often turning on knowledge and control.

The rise of social media, search engines, and user-generated platforms disrupted this paradigm.

Operators of online pages, groups, or forums could be considered publishers in certain circumstances, even without creating or endorsing content.

Judicial decisions in the 2010s and early 2020s, culminating in High Court authority, confirmed that platform operators could be publishers where they facilitated, encouraged, or failed to act after becoming aware of defamatory material. Once material had been brought to the attention of a platform operator, they could bear legal responsibility.

This extension of liability created uncertainty and disproportionate exposure, while complainants often struggled to secure timely removal of defamatory content.

The tension between traditional law and digital reality catalysed legislative reform. Although courts applied concepts of reasonableness and knowledge, there was no dedicated statutory framework governing digital intermediaries prior to the most recent amendments.

Legislative Context and Reform

Defamation law in Australia has been uniformly codified through the Defamation Acts enacted in each state and territory, including the Defamation Act 2005 (NSW). In 2020, the Council of Attorneys-General initiated a national review, leading to a staged reform program.

Stage 1 reforms, implemented in 2021, introduced the serious harm threshold, the public interest defence, and the single publication rule, addressing trivial claims and modernising defences for contemporary publishing.

Stage 2 reforms, implemented through the Defamation Amendment Act 2023 (NSW) and corresponding legislation in other jurisdictions, addressed digital intermediaries and commenced on 1 July 2024.

This stage introduced a statutory framework recognising the functional distinctions between content creators and entities that merely host, transmit, or index third-party content, including search engines, social media platforms, and online forums.

The Statutory Framework for Digital Intermediaries

Under the Defamation Amendment Act 2023 (NSW), new provisions (including section 31A of the Defamation Act 2005 (NSW)) establish a statutory defence for digital intermediaries.

Operators of digital services that display, transmit, or store third-party content may rely on this defence if they:

• Did not create or materially contribute to the content.

• Were not actuated by malice in providing the digital service.

• Maintained an accessible complaints mechanism.

• Took reasonable steps to prevent access to the defamatory material either before receiving a complaint, or within seven days after receiving a compliant written notice of complaint.

Actual knowledge of defamatory imputations is not determinative on its own. Liability turns on whether the intermediary satisfies the statutory conditions for the defence.

Reasonableness is assessed by reference to compliance with the statutory notice and response framework, rather than abstract notions of publisher responsibility.

The reform applies to digital intermediaries including:

• Search engines, where content is created by others and surfaced through indexing or ranking

• Content hosts, such as social media platforms, video-sharing services, cloud storage providers, and online archives

• Forum administrators, including operators of bulletin boards, comment sections, and community discussion platforms

  
  

The statutory defence is designed for digital intermediaries and does not displace the existing liability framework applicable to traditional publishers and broadcasters, whose editorial role remains central to liability analysis.

The New South Wales Parliament through the Defamation Amendment Act 2023 (NSW) is expressly subject to a malice exception. Section 31A of the Defamation Act 2005 (NSW) provides that the defence is unavailable where a digital intermediary was actuated by malice in providing the digital service, regardless of whether the intermediary otherwise complied with the statutory notice and response requirements.

Notice and Response Mechanism

The statutory notice framework establishes a clear procedural pathway:

• Complaint submission: The complainant provides a written notice identifying the location of the content, the defamatory imputations alleged, and basic identifying information required by the Act.

• Platform response: Operators must take reasonable access-prevention steps either before receipt of the complaint or within seven days after receiving a compliant notice. Measures may include removal, disabling access in Australia, hiding content, or limiting visibility.

• Outcome: Compliance enables reliance on the statutory defence; failure to take reasonable steps may expose the intermediary to liability as a publisher.

  
  

The law does not require digital intermediaries to pre-screen content, determine truth, or adjudicate disputes. Responsibility arises only in accordance with the statutory framework and hinges on timely and reasonable action.

Impact on Publishers and Media Organisations

For social media companies and forums, compliance has become a structured risk-management exercise, requiring accessible complaint mechanisms, documented response processes, and records of action taken.

For media organisations, particularly those hosting user-generated comments, the reforms provide clearer guidance. Neutral hosting or transmission of third-party material may attract statutory protection, but endorsing, editing, curating, or promoting user content outside a neutral role may still give rise to liability under ordinary defamation principles.

For website owners and community groups, the law imposes an obligation to provide a functional complaints pathway and to respond reasonably. Ignoring compliant notifications exposes operators to ongoing risk.

For individuals alleging defamation, the reforms provide a predictable mechanism for restricting access to defamatory content without immediate recourse to litigation, while preserving the ability to pursue content authors directly.

Public Interest Defence and Evolving Media

The public interest defence, introduced as part of the 2021 Stage 1 reforms, has reshaped Australian defamation law.

Courts assess whether the publication concerned a matter of public interest and whether the publisher reasonably believed that publication was in the public interest. Editorial judgment, investigative steps, source verification, and opportunities for response are relevant considerations, but none are determinative in isolation.

This defence operates independently of the digital intermediary framework and applies primarily to publishers responsible for editorial decisions. Its significance is amplified in a digital environment where rapid dissemination and amplification can intensify reputational harm.

Conclusion

The Stage 1 and Stage 2 defamation reforms together recalibrate liability in the digital environment.

Digital intermediaries that comply with statutory notice and response obligations may access a tailored defence, while content creators and editorial publishers remain accountable under established principles.

The reforms reflect a recalibration of freedom of expression, public interest, and reputational protection. They acknowledge the operational realities of online publication while preserving meaningful remedies for reputational harm.

For media organisations, digital intermediaries, and publishers, the legislation clarifies obligations and defences, reshaping the practical application of defamation law in a hyperconnected, user-driven media landscape.

Authored by Campbell Dore

Publisher

The Brief

campbell@thebrieflaw.com.au