Defamation (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:55): Obtained leave and introduced a bill for an act to amend the Defamation Act 2005. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:56): I move:

That this bill be now read a second time.

I am pleased to introduce the Defamation (Miscellaneous) Amendment Bill 2024. This bill makes various amendments to the Defamation Act 2005, based on the results of a national review of the uniform model defamation laws undertaken by state and territory attorneys-general. The most significant amendment in the bill will extend the defence of absolute privilege to reports made to police. This will provide victims of crime and witnesses of crime with stronger protection against lawsuits claiming that the report defamed a person involved in the alleged criminal offence.

There is a strong public interest in allowing the free flow of information to police; however, currently a person faces the possibility of being sued in defamation for the allegations they make to police as a victim or a witness to a crime. Whilst the defence of qualified privilege is available, this requires the person who made the report to prove that the report was reasonable.

Further, their motives for reporting may be put under a microscope, as the plaintiff may allege that they were motivated by malice. Even if ultimately unsuccessful in proving qualified privilege, a person may face years of legal proceedings and significant expenses simply to defend a reporting of crime to law enforcement. There is no reason that members of the public should face such a risk for reporting to police, particularly when there is already a criminal offence of knowingly making a false report to police.

The risk of drawn-out defamation litigation may well silence some victims from coming forward, particularly for victims of crimes against a person such as sexual assault or domestic violence. Further, the threat of defamation proceedings for reporting to police may be used to further silence and entrap a victim of coercive control in a domestic abuse situation.

Under the Defamation Act statements made on occasions of absolute privilege have a complete defence to defamation lawsuits. It is not necessary to prove the statement was reasonable, and proving malice will not defeat the defence. Absolute privilege is applied to situations in which the free flow of information is in the public interest, such as courts or parliamentary proceedings. The government believes that members of the public reporting to the police should be another such occasion of absolute privilege.

Under the reforms in this bill, a person sued in defamation only need prove that they made the relevant communication to an official of the police force whilst they were acting in an official capacity, and they will have this complete defence to defamation. It should be noted, however, this only defends the report to the police. Communicating the allegations from the police report to any other party, such as the media, would not attract this absolute privilege.

Any defamation claim arising out of statements made to the media about a report made to the police would still have to be defended using other defences such as qualified privilege. This reform is intended to empower victims of crime, particularly sexual crimes or domestic violence, to come forward to police without fear of retribution through a defamation claim.

This bill also makes two amendments to support people who have been defamed by material posted on the internet. The bill would provide another avenue to have defamatory material removed from an online platform. Currently, a court can make an interim or final injunction requiring a publisher of defamatory material to cease publication; however, this order can only be made against a party to the defamation action. Therefore, if a person defamed wants a large online digital platform, such as Facebook or Google, to remove the defamatory material posted by the third party, they must bring an action for damages against the online platform. If they only sue the author or poster of the matter, they cannot get a takedown order against the digital platform.

This bill will allow courts to make injunctions against digital intermediaries and publishers who are not a party to the action. A digital intermediary is any person or organisation who provided an online service in relation to a digital publication but who was not the author, originator or poster of the matter. This includes search engines, email and messaging services, social networking websites, product review websites and video sharing platforms.

The proposed amendment to the Defamation Act provides that if a person has obtained an interim or final injunction preventing further publication by a defendant in defamation proceedings, the court may also make an order requiring a non-party digital intermediary to take steps to prevent access to the material or to prevent or limit the continued publication or republication of the material. This will not prevent a person also suing the digital intermediary if they so choose. However, they are not required to sue the digital intermediary in order to obtain an order for the digital intermediary to take action in relation to the defamatory material.

Finally, the bill will set down principles that a court must take into account in applications for pre-action discovery relating to a defamatory digital publication. Under the Uniform Civil Rules 2020, South Australian courts may order that a person disclose documents that will allow a potential plaintiff to decide whether or against whom to bring a civil action. This could be used to require a digital intermediary to provide the identifying or contact details of the person who authored or posted defamatory content online through the intermediary services.

If a pre-action discovery application is brought for this purpose before deciding whether to disclose the author or poster's details, the bill provides that a court must take into account the objects of the Defamation Act, which include freedom of expression, fair and effective remedies for persons whose reputations are harmed, speedy and effective dispute resolution, and privacy, safety or other public interest considerations that may arise if the order is made. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Defamation Act 2005

3—Amendment of section 4—Interpretation

This clause inserts new defined terms of access prevention step, digital intermediary, digital matter, online service and poster for the purposes of the measure.

4—Insertion of section 21A

Proposed section 21A is inserted into the principal Act.

21A—Orders for preliminary discovery about posters of digital matter

This clause provides that a court must, when making certain orders for, or in the nature of, preliminary discovery, take into account the objects of the principal Act and any privacy, safety or other public interest considerations that may arise if the order is made. This clause does not limit the matters the court may take into account in addition to these matters.

5—Amendment of section 25—Defence of absolute privilege

This clause amends section 25 of the principal Act to extend the defence of absolute privilege to publications of defamatory matter made to a person who, at the time of the publication, is an official of a police force or service of an Australian jurisdiction and it is published to the official while the official is acting in an official capacity.

6—Insertion of section 37A

Proposed section 37A is inserted into the principal Act.

37A—Orders against non-party digital intermediaries concerning defamatory digital matter

This clause provides that in defamation proceedings to which this clause applies, the court may order a non-party digital intermediary to take access prevention steps or other steps that the court considers necessary, to prevent or limit the continued publication or republication of digital matter the subject of the defamation proceedings. This clause provides that orders can be made in relation to a digital intermediary even if the intermediary is not liable for defamation because of a statutory exemption or defence.

Schedule 1—Transitional provisions

1—Absolute privilege amendments

The absolute privilege amendments will apply to publications made after the absolute privilege amendments commence while the existing law will continue to apply to publications made before that commencement.

2—Preliminary discovery or non-party digital intermediary order amendments

With 2 exceptions, the preliminary discovery or non-party digital intermediary order amendments will apply to orders made after the commencement of the amendments regardless of whether the proceedings in which the orders are made—

(a) involve causes of action accruing before or after the commencement; or

(b) were commenced before or after the commencement.

The exceptions, to which the existing law will continue to apply despite the amendments, are—

(a) an order made before the commencement of the amendments;

(b) the variation or revocation of an order made before the commencement of the amendments.

Debate adjourned on motion of Hon. B.R. Hood.