Stage 2 Review of the Model Defamation Provisions – Part A: Liability of internet intermediaries for third-party content
The Law Council welcomes the opportunity to make a submission to the Attorneys-General, regarding Part A of the Consultation Draft Model Defamation Amendment Provisions 2022 (Draft Amendments) and related Background Paper (Background Paper).
The Law Council has responded to these documents in the order of the provisions in the Draft Amendments rather than in order of the recommendations included in the Background Paper. On occasion throughout this submission, the Law Council notes the alternative view of some contributors to this submission. Where this occurs, the Law Council requests that those comments be attributed to the stated contributor rather than the Law Council as a whole.
Throughout the Draft Amendments there are a number of terms, such as ‘online service’, ‘post’ and ‘poster’ which require further consideration to ensure that they are technology-neutral and adaptable for emerging methods of digital distribution. Several terms including ‘online service’ and ‘storage service’ also require amendment to ensure that they capture the intended internet intermediaries.
The Law Council maintains its support for the introduction of an immunity for internet services performing basic functions in circumstances where the internet service is acting as a mere conduit and is entirely passive in the publication. However, the Law Council is not convinced that public policy supports the introduction of a statutory exemption from defamation liability for standard search engine functions. Rather, the Law Council considers that search engines should be treated in the same manner as other internet intermediaries (such as social media services) – that is, able to rely on other defences when appropriate, such as the innocent dissemination defence or the proposed Model A or B defences should one be implemented.