What digital media businesses need to know about Australia’s defamation laws

With the recent passing of Tasmania’s Defamation Amendment Bill 2024, Australia has taken significant steps in implementing Stage 2 Defamation reforms, updating the Defamation Act 2005 to better address online content. 

What some media organisations, professionals and content creators may be unaware of, however, is that the new laws clarify the legal actions and so, correspondingly, make it easier for legal action to be brought against them for alleged defamation in digital communications. 

And with only half of the country’s jurisdictions having implemented the reforms, the lack of national regulatory harmony on defamation in digital content creates legal uncertainty for companies operating across multiple states, while opening up the risk of “forum shopping” by claimant lawyers seeking favourable outcomes in specific jurisdictions. 

Defamation law in Australia 

In Australia, defamation cases are governed by separate state and territorial laws. These were partially unified by the introduction of the Defamation Act 2005, which sought to create a more consistent, country-wide approach. 

State defamation cases are typically heard in the Supreme Court or District Court of the relevant state or territory, under laws primarily aimed at protecting individuals and small businesses. Larger corporations cannot typically be sued for defamation in state courts unless they meet specific criteria.  

Federal laws may intersect with defamation cases where they involve online platforms or national broadcasters, particularly with respect to laws on privacy, data protection, and telecommunications. In some cases, plaintiffs may choose to file defamation proceedings in the Federal Court, especially where national or international platforms are involved. 

Litigation trends 

Australia has witnessed several high-profile defamation cases in the past decade, some of which have resulted in substantial awards of damages.  

The state case of Rebel Wilson vs. Bauer Media in 2017 resulted in the comedian and actress being awarded more than $4.5 million in damages. This was later reduced to $600,000 by the Victorian Court of Appeal as loss of film opportunities was not established.  

And in the federal case of Geoffrey Rush vs. Nationwide News in 2019, the judge awarded the actor $850,000 in general and aggravated damages which were later increased to $2.9 million, including economic loss. 

In the political arena, the federal case of Peter Dutton vs Shane Bazzi (2021) resulted in Australian Defence Minister Dutton being awarded $35,000 in damages against refugee advocate Bazzi for a defamatory tweet. This decision was overturned on appeal in 2022. 

Also at the Federal Court, Joe Hockey v Fairfax Media (2015) resulted in the former Treasurer of Australia being awarded $200,000 in damages. 

Most telling for the digital age, perhaps, was the 2015 state case of Janice Duffy vs Google, in which the Adelaide researcher was awarded $100,000 in damages, plus interest, against the tech giant, after Google was found liable as a secondary publisher of defamatory content via search results.   

Rush won a case against the Daily Telegraph for reporting that included a front page headline that referred to him as “King Leer”

How the law has changed 

Reforms to Australia’s defamation law have introduced key changes, reflecting the digital age and clarifying defamation actions.  

Serious harm threshold 

Plaintiffs must now demonstrate that defamatory statements caused or are likely to cause serious harm to their reputation. This aims to reduce trivial claims.  

Public interest defence 

This is a new defence that protects journalists and publishers if the defamatory statement is made in the public interest and meets specific criteria. 

Digital intermediaries 

The introduction of the concept of “digital intermediaries” targets website hosts and forum administrators for platforms that feature third-party content, with the aim of balancing liability and freedom of expression.  

Truth and context 

The context in which a statement is made is now considered alongside its factual accuracy. Even truthful statements can be deemed defamatory if presented misleadingly. 

Online defamation 

The laws explicitly address defamation on social media and online platforms, reflecting the growing impact of digital communication. 

Concerns notice 

New requirements for issuing a “Concerns Notice” before initiating defamation proceedings have been established. 

The most recent reforms also introduce a refined defence of “innocent dissemination”, safeguarding intermediaries if they take action within seven days to address complaints about defamatory material, and subject to certain conditions around distribution and knowledge of defamatory content.   

The impact of social media 

The ease of publication and rapid spread of information online, enabled by the expansion of social media, has led to an increase in defamation claims related to social media posts.  

While businesses, particularly in media and publishing, will benefit from the enhanced public interest defence introduced in the new laws, they will nonetheless need to be more diligent in ensuring their reporting is accurate and presented in context.  

Owners of social media platforms and online content providers, including social media “influencers”, should also be aware they have increased responsibilities under the new laws. Ensuring there are robust systems in place to review content before publication and to address and remove defamatory content in a timely manner will be essential. 

Protection against defamation claims 

Given the increased risk of legal action stemming from recent defamation law reforms, it would be prudent for media organisations and professionals to consider the need for professional indemnity (PI) insurance to cover the associated risks. 

Typical media PI insurance policies are designed to protect media professionals for claims arising from defamation, as well as intellectual property infringement, breach of confidentiality, and consumer protection legislation in relation to misleading or deceptive content.  

It is essential that all stakeholders in the online content space familiarise themselves with the new legal landscape.

Understanding these changes is key to navigating defamation issues in the future and mitigating the risk of potential claims being brought against media professionals. 

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