ACT moves on "digital intermediary" amendments

The ACT government has launched digital-age amendments to its defamation law.

The amendment, known as the Civil Law (Wrongs) Amendment Bill 2024, is the ACT’s response to the national process of updating defamation laws according to a model agreed during 2023.

"The Standing Council of Attorneys-General has agreed for all jurisdictions to enact the legislative amendments to start on July 1 2024," ACT attorney-general Shane Rattenbury said.

“Currently, the law can be unclear on when digital intermediaries are liable for defamatory material.”

The amendments will define the responsibilities that apply to different kinds of intermediaries like service providers, web hosts, search engines, compared to the individuals that post comments or organisations operating online forums.

Passive intermediaries – email hosts, storage services, and content caches – will be exempt from defamation if they take no steps to publish the content; while search engines will be exempt if their search results are automatic and they don’t promote the defamatory content “for commercial benefit”.

For organisations hosting websites or social media services, “innocent dissemination” will be a defence against defamatory content posted by users, so long as they have a simple complaints process, and take down allegedly defamatory content within seven days.

Courts will be given the power to order takedowns.

Getting defamation law amended around the country has been a slow process: the Council of Attorneys General first convened a Defamation Work Party in 2018, and it announced in 2023 that a majority of states and territories had agreed to reform intermediary liability by July 2024.

South Australia was the one state not to agree, and according to a summary by Clayton Utz, is undertaking further review.

NSW’s amendment came into force on October 30 last year, while Victoria has conducted a public consultation but has not yet introduced legislation.