Innocent dissemination and the new protections for digital intermediaries

Defamation law treats everyone who takes part in communicating defamatory matter as a publisher. That has always included people with no idea what the words said: the newsagent who sells the paper, the library that lends the book, the company whose servers host the website. The law has long softened that rule for people who merely disseminate what others have written, and since 2021 the uniform defamation legislation has added a layer of protections for the online services through which most publication now happens.

This article explains the innocent dissemination defence in s 32 of the Defamation Act 2005 (NSW), the position of page administrators and forum hosts after Voller, the Stage 2 exemptions for caching, conduit, storage and search services, the new complaints based defence in s 31A, and the orders that can now be made against intermediaries that are not parties to the case. It ends with a table of where each provision applies.

Who is a publisher

In Fairfax Media Publications Pty Ltd v Voller the High Court held that media companies which ran public Facebook pages were publishers of third party comments posted on them. The plurality held that any act of participation in the communication of defamatory matter to a third party is sufficient to make a person a publisher. By creating a public page and posting content that invited comment, the companies facilitated, encouraged and thereby assisted the posting of comments, and so were publishers of them.¹ Whether a publisher was innocent, in the sense of lacking knowledge, is a matter for the defence of innocent dissemination, which was not before the Court.²³

The decision applies with equal force to a small business, a sporting club or a community group that administers a page or forum. Administrators are publishers of what their visitors post. Their protection, if any, has to come from the defences and exemptions below.

Innocent dissemination under s 32

Section 32(1) provides a defence if the defendant proves three things: that the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; that the defendant neither knew nor ought reasonably to have known that the matter was defamatory; and that the lack of knowledge was not due to any negligence on the defendant’s part.²

A subordinate distributor is defined in s 32(2) as a person who was not the first or primary distributor of the matter, was not its author or originator, and did not have any capacity to exercise editorial control over the content or the publication before it was first published.² Section 32(3) gives examples of people who are not first or primary distributors: booksellers, newsagents and newsvendors; librarians; wholesalers and retailers; providers of postal or similar services; broadcasters of live programs where they have no effective control over the person making the statements; providers of services consisting of processing, copying, distributing or selling electronic media containing the matter; and operators or providers of equipment, systems or services used to retrieve, copy, distribute or make available electronic matter, including internet service providers and website hosts.²

Three features of the defence matter in practice. First, it is lost once the distributor knows or ought to know of the defamatory content. Notice from the person defamed therefore usually ends the protection for continued publication, although courts have allowed a reasonable time to act. In Google Inc v Duffy the Full Court of the Supreme Court of South Australia held that Google became a publisher of search results once notified and given a reasonable time to remove them, and could not rely on innocent dissemination after that point.³ Second, the question is whether the defendant had any capacity to exercise editorial control before the matter was first published, so an entity that could have moderated content before it went live is not a subordinate distributor. Third, the defence is unlikely to help a page administrator for comments that have been on the page for some time, because the administrator has the capacity to delete them and will often be taken to know what is there.

Live broadcasters illustrate the limits. In Thompson v Australian Capital Television Pty Ltd the High Court accepted that a broadcaster could in principle be a subordinate distributor. It held, however, that a station relaying another network’s live program on a near instantaneous basis still had the ability to control and supervise what went to air, because the decision to relay it without delay was the station’s own, and so it could not rely on the defence.⁴ Section 32(3)(e) reflects that approach by confining the example to live broadcasters with no effective control over the speaker.²

Search engines before the reforms

Two High Court decisions set the scene for the Stage 2 changes. In Trkulja v Google LLC the Court held it was strongly arguable that Google published the search results it returned, including images and autocomplete predictions, and that the availability of defences such as s 32 was a matter for Google to plead and prove rather than a reason to strike out the claim.⁵

In Google LLC v Defteros the Court held, by majority, that Google was not a publisher of a newspaper article merely because an organic search result contained a hyperlink to it. Kiefel CJ and Gleeson J reasoned that providing a hyperlink in a search result was merely a tool that enabled the user to reach the article and was not participation in its communication, and that notice from the plaintiff went to innocent dissemination rather than to whether there was publication at all.⁶ Gageler J drew a distinction between organic results and sponsored links, where the search engine is paid to display an advertiser’s content.⁶ That distinction is now written into the statute.

Division 2A: exemptions for digital intermediaries

The Stage 2 reforms inserted Division 2A into Part 2 of the Act. Section 10B defines the services covered: a caching service that stores material temporarily for faster access, a conduit service that transmits material without storing it other than transiently, and a storage service that stores material provided by users, as well as a search engine and search results.⁷

Section 10C provides that a digital intermediary providing a caching, conduit or storage service is not liable for the publication of matter through that service if it did not initiate the publication, did not select the recipients, did not encourage the poster to publish the matter, did not edit the content whether before or after publication, and did not promote the matter whether before or after publication.⁸ The exemption applies regardless of whether the intermediary knew or ought to have known that the matter was defamatory.⁸

Section 10D exempts a search engine provider from liability for matter published as a search result and for hyperlinked matter reached through an organic result, again regardless of knowledge. It applies only where the provider’s role was limited to providing an automated process for the user to generate the results, and it does not apply to the extent that a result was promoted or prioritised because of a payment or other benefit from a third party.⁹ Section 10E requires the judicial officer to determine whether an exemption is established as soon as practicable before the trial, unless there are good reasons to postpone the question, and permits the proceedings to be dismissed if the exemption is made out, so that an intermediary can leave the case without a full trial.¹⁰

The exemptions are designed to cover the passive, automated functions that attracted argument in Trkulja and Defteros. They will not cover a service that curates, boosts or edits content, and they do nothing for the poster, who remains fully liable.

The s 31A defence: complaints and seven days

For intermediaries that go beyond the exempt functions, such as social media platforms, review sites and forum hosts, s 31A offers a defence built around a complaints process. The defendant must prove that it was a digital intermediary in relation to the publication, that it had an accessible complaints mechanism available to the complainant at the time, and that, if a written complaint was given, reasonable access prevention steps, where any were available, were taken either before the complaint or within seven days after it was received.¹¹

The complaint must be in writing, state the complainant’s name, identify the matter and where it can be found, and say that the complainant considers it defamatory. It may be given through the complaints mechanism or by the methods of service in s 44, which include email and electronic forms.¹¹ An “access prevention step” is defined in s 4 as a step to remove, block, disable or otherwise prevent access to the matter, and s 31A(6) describes an accessible complaints mechanism as an easily accessible address, location or other mechanism for complaining about the matter, such as an email address or a web form.¹¹

The defence is not lost simply because the intermediary moderates content; s 31A(5) says that a defendant does not stop being a digital intermediary merely because it took steps to detect, remove or block defamatory, unlawful or non compliant content.¹¹ The defence can be defeated only by proof of malice, and only malice in establishing or providing the online service, not malice in relation to the particular post.¹¹

Two things follow for businesses that run pages or forums. The definition of digital intermediary in s 4 covers any person other than the author, originator or poster who provides or administers the online service by which the matter is published.¹² That includes a page administrator. A business that publishes a plain complaints email address on its page and deletes offending comments within seven days of a written complaint has a defence it never had under s 32. On the other hand, a business that ignores a complaint, or has no obvious way to receive one, is a publisher with no statutory protection and only the general law to fall back on.

No reported decision had applied s 31A or the Division 2A exemptions when this article was written. The courts have therefore yet to say what a “reasonable” access prevention step is, or how far an administrator’s own moderation can go before it amounts to editing for the purposes of s 10C.

Orders against intermediaries that are not parties

Section 39A allows a court that has given judgment for a plaintiff, or granted an injunction, to order a digital intermediary that is not a party to the proceeding to take access prevention steps in relation to the matter. The intermediary must be given an opportunity to be heard unless the court considers it urgent, in which case a temporary order can be made without notice. The power exists even where the intermediary is not itself liable for the publication.¹³

This addresses the common problem of a successful plaintiff holding a judgment against an individual poster who will not or cannot take the material down. The companion provision, s 23A, requires a court, when deciding an application for preliminary discovery to identify an anonymous poster, to take into account the objects of the Act and any privacy, safety or other public interest considerations before ordering disclosure.¹⁴

Differences between jurisdictions

The s 32 defence is uniform, apart from numbering. The Stage 2 intermediary provisions are not.

Queensland places the service definitions in its dictionary schedule rather than in a s 10B, and the ACT and NT use different section numbers throughout. South Australia adopted the non party order power, the preliminary discovery provision and the provision extending absolute privilege to reports made to police, but not the exemptions or the s 31A defence. Western Australia has adopted neither stage of the reforms, so a WA publication is governed by s 32 and the general law alone.

Two rules combine to complicate this. The intermediary amendments apply only to causes of action that accrued after they commenced in the relevant jurisdiction. And under the choice of law rule in s 11, where matter is published in more than one Australian jurisdiction the governing law is that of the jurisdiction with which the harm as a whole has its closest connection. A national platform may therefore face different rules for the same post depending on where the plaintiff’s reputation was mainly damaged.

Getting advice

Whether an online service, a page administrator or a search provider is protected depends on what function it performed, what it knew, and how it responded to complaints, all of which must be evidenced. Anyone running an online community, or seeking to have material removed from one, should obtain advice on the exemptions, the complaints notice process and the orders available in the relevant jurisdiction before acting.