NSW and the ACT are the first in Australia to adopt new national laws modernising defamation law for the digital age, effective today. The legislation aims to balance freedom of speech and reputation protection in digital publishing.

Key Points:

1. Digital Intermediaries Defined:

   • Includes social media platforms, review websites, search engines, content hosts, and service providers.
   • Organisations and individuals hosting forums with third-party comments (forum administrators) are also considered digital intermediaries.
      

2. Response to Fairfax Media v Voller:

   • The High Court ruled media companies as publishers of third-party comments on their social media pages.
   • The new laws introduce a defence for digital intermediaries who 'innocently disseminate' defamatory content.
      

3. Innocent Dissemination Defence:

   • Applicable to forum administrators, including ordinary individuals like parents or local club members.
   • Requires forum administrators to provide an easy way for people to complain about defamatory content (e.g., an email address).
      

4. Benefits for Defamation Victims:

   • Establishes a straightforward complaint process to digital intermediaries.
   • If defamatory content is not removed within seven days, the intermediary loses the innocent dissemination defence.
   • Courts can order non-party digital intermediaries to remove defamatory content.
      

5. Other Reforms:

   • Extends the defence of absolute privilege to reports made to police, such as sexual assault complaints, to prevent defamation threats from deterring complaints.

The Defamation Amendment Act 2023 (NSW) introduces significant changes to address the challenges of defamation in the digital age, balancing free speech and reputation protection, and providing clear guidelines and protections for digital intermediaries and defamation victims. 

Read the full NSW Government media release here.