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Review of Model Defamation Provisions - Stage 2 Discussion Paper

The submission to the Attorneys-General, in response to the Discussion Paper released as part of Stage 2 of the Review of Model Defamation Provisions (Discussion Paper) was prepared by the Law Council of Australia. 

Part A of the Discussion Paper addresses issues related to the liability of internet intermediaries in defamation for the publication of third-party content. In this regard, the Law Council generally supports a legislative framework that shifts liability towards originators.

The Law Council supports the introduction of an immunity for internet services performing basic functions in circumstances where the internet service is acting as a mere conduit, such as an Internet Service Provider (ISP), or where the internet service is entirely passive in the publication. The Law Council provides a possible provision at Appendix 1 for consideration by the Attorneys-General. 

As the internet evolves at a rate much faster than the development of laws, the Law Council’s view is that attempting to classify internet intermediaries with any degree of specificity (particularly beyond the level of basic service) is a highly difficult task. The Law Council provides three possible approaches for appropriately capturing internet intermediaries including a ‘broad definition approach’ (an example provision is provided for consideration at Appendix 2), a ‘principles approach’ and a ‘functions approach’. The Law Council considers the ‘broad definition approach’ to be the preferrable option.

The Law Council considers amendments should be made to the innocent dissemination defence to provide greater protection for internet intermediaries in certain circumstances and greater clarity and certainty for all parties involved. The Law Council generally favours the ‘Alternative A’ proposal in the Discussion Paper to amend the defence to create a default position that digital platforms and forum administrators are not primary distributors. Under such an approach, these intermediaries would still be required to satisfy the other limbs of the innocent dissemination defence but the position regarding their involvement in the publication would be clarified. Possible revisions to clause 32 of the Model Defamation Provisions (MDPs) are included in Appendix 3 for the consideration of the Attorneys-General.

The issue around identification of an underlying originator is a vexed and important one. The Law Council is of the view that the courts may be best place to reach an appropriate balance between competing considerations – including privacy rights, freedom of expression, harm to reputation, and the public interest of any matters disclosed. In this regard, the Law Council supports the Canadian approach described in the Discussion Paper.

Part B of the Discussion Paper considers whether complaints of alleged criminal conduct to police and statutory investigative bodies and of unlawful conduct to disciplinary bodies and employers should attract the defence of absolute privilege. The primary rationale for such a change would be to encourage reports of wrongdoing by removing the risk potential defamation action.

The Law Council strongly supports appropriate reforms to encourage reporting of issues such as workplace sexual harassment. However, there are divergent views among members of the profession as to whether the extension of the defence of absolute privilege is an appropriate reform. The Law Council’s Defamation Working Review of Model Defamation Provisions - Stage 2 Discussion Paper Page 6 Group and the Law Society of South Australia (LSSA) consider that the qualified privilege defence currently provides the appropriate level of protection to members of the general public in making genuine, honest complaints to appropriate recipients. However, the Law Society of Tasmania (LST) supports the expansion of absolute privilege, in the context of reports to employers and regulators within the legal profession, as a measure which may encourage greater reporting of issues such as sexual harassment. Both views are provided for consideration by the Attorneys-General.

You can read the full submission below.
 

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