The Stage 2 reforms: digital intermediaries and online publication

The second stage of Australia’s defamation reform program deals with publication on the internet. It answers a question the uniform legislation of 2005 never addressed directly: when is a platform, host, search engine or page administrator liable for defamatory material that someone else wrote? It also extends absolute privilege to reports made to police, so that people are not deterred from going to the authorities by the fear of being sued.

This article explains why the reforms were needed, what Parts A and B did, when they commenced in each jurisdiction, what they mean in practice and what remains unresolved. The detailed operation of the intermediary defence is covered in a separate article on innocent dissemination and digital intermediaries.

Why Part A was needed

At common law any person who participates in communicating defamatory matter is a publisher, regardless of knowledge or intent. In Fairfax Media Publications Pty Ltd v Voller in 2021 the High Court applied that rule to media companies running public Facebook pages, holding that by creating the pages and inviting comment they had facilitated and encouraged third party comments and were publishers of them from the moment they were posted.¹ Liability then turned on whether a defence, principally innocent dissemination under s 32, was available.

A year later, in Google LLC v Defteros, the High Court held that a search engine that returned an organic hyperlink to a defamatory newspaper article was not a publisher of the article, because providing a link that a user might choose to follow was not participation in the communication of the article’s content.² The two decisions left the liability of online services dependent on fine distinctions about what counted as facilitating communication, with the s 32 defence as the main protection for hosts of user content. That defence is difficult to maintain once a complaint has been received.

The Attorneys General had agreed in 2020 to a second stage of reform on the liability of digital platforms, led by New South Wales. On 22 September 2023 the Standing Council of Attorneys General approved the final Part A amendments by majority, with every jurisdiction except South Australia agreeing to work towards commencement on 1 July 2024.³

What Part A did

New South Wales enacted the amendments in the Defamation Amendment Act 2023 (NSW), which commenced on 1 July 2024.⁴ Using the NSW numbering, the package has six parts.

Definitions

Section 10B and the dictionary in s 4 define a digital intermediary as a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published. Digital matter is matter published in electronic form by means of an online service, a term that covers access to the internet and services for sending, storing, indexing, searching for or sharing content.⁵ There can be more than one digital intermediary for the same publication. In Queensland the definitions are in Schedule 5.

Division 2A exemptions

Section 10C provides that a digital intermediary is not liable for defamation if it proves three things: that the matter was published using a caching service, conduit service or storage service that it provided; that its role was limited to providing those services; and that it did not initiate the steps required to publish the matter, select any recipients, encourage the poster, edit the content before or after publication or promote the matter.⁶ This covers internet service providers, cloud hosts and email services whose role is wholly passive.

Section 10D provides that a search engine provider is not liable for the publication of search results, or of the matter the results link to, if its role was limited to providing an automated process for the user to generate the results.⁷ Sponsored or promoted results fall outside it. The section gives statutory form to the outcome in Defteros and extends it to the search result itself.

Section 10E requires the judicial officer to determine whether an exemption is established as soon as practicable before trial, unless there are good reasons to postpone it, and permits dismissal if it is made out.⁸

The s 31A defence

For intermediaries that are not exempt, such as social media platforms, forum hosts, review sites and the administrators of public pages, s 31A creates a defence to the publication of defamatory digital matter. The defendant must prove that it was a digital intermediary in relation to the publication, that at the time of publication it had an accessible complaints mechanism for the plaintiff to use and, if the plaintiff gave a written complaint, that reasonable access prevention steps, if steps were available, were taken before the complaint or within seven days after it.⁹ A complaint must identify the plaintiff, the matter and where it can be found, and state that the plaintiff considers it defamatory. The defence is defeated only by malice in establishing or providing the service, and an intermediary does not lose it merely because it moderated content. Section 31A operates alongside s 32 and gives an intermediary that acts within seven days on a complaint that complies with the requirements a complete defence without any inquiry into what it knew.

Preliminary discovery about posters

Section 23A applies where the rules of court allow a prospective plaintiff to seek preliminary discovery to identify the poster of digital matter or locate an address for serving a concerns notice. Before making the order the court must take into account the objects of the Act and any privacy, safety or other public interest considerations; the Act gives the example of a poster who fears domestic violence from the applicant.¹⁰

Orders against non party intermediaries

Section 39A applies once a plaintiff has obtained judgment, or a temporary or final injunction, against a defendant over digital matter. The court may then order a digital intermediary that is not a party to take access prevention steps or other steps to prevent or limit continued publication or republication, or to give effect to the judgment or injunction. The intermediary must be given an opportunity to be heard, except where a temporary order is needed urgently, and the order may be made even if the intermediary is not itself liable.¹¹

Offers to make amends and service

Section 15 now provides that where the matter is digital matter, an offer to make amends may include an offer to take access prevention steps, instead of or in addition to the offer to publish a correction or to pay expenses.¹² Section 44 allows notices and documents under the Act, including concerns notices and s 31A complaints, to be given by email, messaging or other electronic communication to an address the recipient has indicated for the purpose, such as a contact address on a social media forum or a web form.¹³

Transitional rules

The exemptions, the s 31A defence and the police privilege apply only to causes of action accruing after commencement in the relevant jurisdiction. The offer, service, preliminary discovery and non party order provisions apply to offers, documents and orders made after commencement, whenever the matter was published.¹⁴

What Part B did

Part B of the review, led by Victoria, considered whether absolute privilege should extend to reports of conduct such as sexual harassment and sexual assault made to police and other complaints bodies. The Standing Council approved the final Part B reforms on 22 September 2023. The agreed model extends absolute privilege to matter published to police and leaves each jurisdiction to decide, by reference to guiding principles agreed by the Standing Council, whether to extend it to other complaints handling bodies.³

In New South Wales the change is s 27(2)(b1), which provides that matter is published on an occasion of absolute privilege if it is published to a person who, at the time of publication, is an official of a police force or service of an Australian jurisdiction, while the official is acting in an official capacity. An official includes an officer, employee or member of staff of the police force or service and a person engaged to act on its behalf.¹⁵ The equivalent provisions are s 27(2)(ba) in Victoria, Queensland and Tasmania, s 25(2)(ba) in South Australia, s 137(2)(ba) in the ACT and s 24(2)(ba) in the Northern Territory.¹⁶

Because the privilege is absolute, malice is irrelevant and even a knowingly false report is protected from a defamation action. A person who makes a false report may still face other consequences, such as prosecution for making a false report to police. The privilege attaches only to the publication to the police official. Repeating the allegation to the media, an employer or on social media is a separate, uncovered publication.

The ACT has gone further than the model. Schedule 1A of the Civil Law (Wrongs) Act 2002 (ACT) lists additional bodies to which publications attract absolute privilege, including the human rights commission, the integrity commission, the inspector of correctional services, the law society and bar association, the work health and safety commissioner, official visitors, the public trustee and guardian and the sentence administration board.¹⁷ Tasmania has added publications made to its Anti Discrimination Commissioner, or the Commissioner’s staff, for the purposes of the Anti-Discrimination Act 1998 (Tas).²⁶ The other jurisdictions have so far confined the new privilege to police.

Commencement by jurisdiction

South Australia did not join the majority on Part A and has not enacted the Division 2A exemptions or the s 31A defence, although it has enacted the police privilege, the preliminary discovery factors and the power to make orders against non party intermediaries.²³ In Western Australia the 2005 Act remains in its original form, although the Attorney General said in October 2026 that legislation implementing Stage 1 and Part A of Stage 2 was being prepared.²⁴

The staggered dates matter because of the choice of law rule in s 11, under which the law of the jurisdiction with the closest connection to the harm governs a multi jurisdiction publication. As a result, an intermediary sued over a national publication may find the exemptions and the s 31A defence available under the law of one state but not under the law of South Australia or Western Australia, and the date of each publication must be checked against the local commencement date.

Practical implications

For those who administer public pages, forums or review platforms, the reforms create a compliance pathway. An accessible complaints mechanism should exist before any complaint arrives, because s 31A(1)(b) requires it at the time of publication, and complaints containing the required information should be acted on within seven days. Moderating content does not cost the administrator the defence.

For internet service providers, hosts and search engines, the exemptions in ss 10C and 10D and the early determination procedure in s 10E provide an early exit from proceedings, provided the role was in fact passive. Promoting, editing or encouraging particular content takes the intermediary outside the exemption.

For people defamed online, the effects run in both directions. It is harder to sue a platform or administrator that responds to a complaint, so the author becomes the more realistic defendant. Against that, ss 23A and 44 ease the identification and service of anonymous posters, and s 39A provides a direct route to removal once judgment or an injunction has been obtained. A s 31A complaint should be made early and contain the required information, because the seven day period does not start until it has been given.

For anyone who has reported misconduct to police, Part B removes the risk of a defamation claim over the report to police itself, in every jurisdiction except Western Australia. It does not protect repetition elsewhere. Outside the ACT, and Tasmania’s anti discrimination provision, it does not extend to complaints to employers, professional bodies or regulators, which continue to rely on qualified privilege.

What remains unresolved

First, there is little judicial consideration of the new provisions. The meaning of reasonable access prevention steps, what amounts to encouraging a poster or promoting matter under s 10C, and how early determination under s 10E will work remain to be worked out. No appellate decision construing ss 10C, 10D, 10E or 31A had been identified as at October 2026.

Second, the interaction with s 235 of the Online Safety Act 2021 (Cth) is unsettled. That section denies effect to a state or territory law to the extent that it makes an Australian hosting service provider or internet service provider liable for content of which it was not aware. The Standing Council recorded that the Commonwealth would prepare an exemption for defamation laws from s 235(1).³ None had been registered as at October 2026, and s 235 has received little judicial attention.²⁵ Until then, how it sits with the new state defences remains open.

Third, uniformity has been lost. South Australia has part of the package and Western Australia none, so a national online publication may attract different intermediary rules depending on where the closest connection lies, and the breadth of absolute privilege for reports of misconduct differs between jurisdictions.

Getting advice

The Stage 2 reforms change who can be sued over online material, what an intermediary must do to protect itself and how material can be removed after judgment. Which rules apply depends on the jurisdiction, the date of publication and the role the defendant played.