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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2025-08-21 Daily Xml
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Bills

Defamation (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms HUTCHESSON (Waite) (15:42): When concluding my remarks on the bill earlier, I was referring to the fact that concerns about malicious reports are addressed by the Summary Offences Act 1953, which already covers the offence of making false statements to the police, ensuring that individuals who make malicious or false reports are held accountable.

Amendments have also been included in this bill to provide better support for individuals who are defamed by material posted online. A significant update in the bill pertains to the concept of an offer to make amends, which was discussed in the other place. This is a crucial element of defamation law that allows publishers to make corrections before legal proceedings begin. If notified of potentially defamatory content, a publisher has a period of time to offer to make amends, typically by removing or correcting the material. The bill now clarifies that online content publishers can take steps other than removal, such as blocking or disabling access to defamatory material, to make amends. This reflects the modern reality that some content cannot simply be removed in this digital age.

The bill also provides additional recourse for those defamed on online platforms. Recent legal cases, such as the Voller case, have demonstrated that digital intermediaries, such as social media platforms and page moderators, can be held liable for hosting defamatory content. However, many questions surrounding this issue remain unresolved, especially after the matter was settled between the parties. In civil defamation proceedings, parties may apply to the court for pre-action discovery, the process by which information is provided by the other party to help determine the cause of action. This bill sets out principles to guide courts when considering such applications in defamation cases.

Under the Uniform Civil Rules 2020, South Australian courts may order a party to disclose documents that help a potential plaintiff decide whether or not to bring action. This could include requiring digital intermediaries to provide identifying details such as names, emails, and IP addresses of individuals who posted defamatory content anonymously. The court will consider several factors when deciding whether to grant defamation-related pre-action discovery application, including the Defamation Act's objectives: protecting freedom of expression, safeguarding public interest publications, providing fair remedies for damaged reputations and encouraging quick non-litigious resolutions.

As we have seen in other Australian jurisdictions, prolonged defamation proceedings can be costly and drawn out. Often the remedy sought by the party's contact removal, a correction or an apology can be achieved without lengthy litigation. While considering these applications the court must also weigh privacy, safety and public interest concerns, ensuring that vulnerable individuals, such as whistleblowers or victims of domestic violence, are not exposed inappropriately. This amendment does not limit other considerations the court may take into account when deciding whether to allow pre-action discovery. It is recognised that each case will depend on its specific circumstances.

The final amendment in the bill addresses the court's ability to issue orders against non-parties, such as online platforms, requiring them to remove or block access to defamatory content. Currently defamation cases can only result in injunctions against the publisher of the defamatory material. Under the current system if someone wants to make a major online platform, like Facebook or Google, remove defamatory content posted by a third party, they must file a lawsuit against the platform itself.

This bill will allow courts to issue injunctions against digital intermediaries and other publishers even if they are not directly involved in the defamation case. A digital intermediary refers to any person or organisation that provides online services related to digital publications such as search engines, email services, social media platforms and video-sharing websites. This change will provide individuals with more options for protecting their online reputation, allowing them to take action against platforms without necessarily pursuing large companies like Meta or Google. At the same time, it will enable courts to order these companies to remove or block defamatory content. I commend the bill to the house.

Mr BROWN (Florey) (15:46): I am pleased to rise in support of the Defamation (Miscellaneous) Amendment Bill. This bill seeks to make a range of amendments to the Defamation Act 2005 arising from the results of a national review of the uniform model defamation laws that was undertaken by the Standing Council of Attorneys-General. This body, which convenes quarterly, comprises attorneys-general from the Australian government, from all states and territories, as well as the New Zealand Minister for Justice. Its purpose is to implement a national and trans-Tasman focus on maintaining and promoting best practice in law reform.

The review that ultimately led to the proposed reforms before us gave consideration to a number of matters. It gave particular consideration to whether absolute privilege should be extended to cover reports of conduct such as sexual harassment and sexual assault to police. We may consider that the most significant amendment proposed in the bill now before us is a measure that seeks to extend the defence of absolute privilege to reports that are made to police. This aims to provide victims of crime and witnesses of crime with stronger protection against law suits claiming that the report defamed a person involved in the alleged behaviour.

I believe that members across all sides of politics, and indeed members of the South Australian community, would agree with the broad principle that there is a clear public interest in supporting the flow of information from members of the South Australian community to police. Under the current arrangements it is the case that a person can face the possibility of being sued under defamation laws as a result of allegations or reports they make to police, whether that is as a victim of a crime or as a witness to a crime.

The defence of qualified privilege is available under such circumstances, but this defence requires the person who made the report to prove that the report was reasonable, and irrespective of the outcome of an action that may be taken against an individual in circumstances such as I described, which is to say whether attempts to prove qualified privilege are ultimately successful or unsuccessful the possibility does exist that a person may face years of legal proceedings and, indeed, they may incur significant expenses simply in order to defend what might well have been a straightforward and well-intentioned act of reporting a crime to law enforcement.

This is not a risk that members of the public should reasonably be expected to face, particularly when a criminal offence of knowingly making a false report to police already exists under our current laws. That offence quite rightly exists with the precise intention of deterring and preventing that type of reprehensible behaviour and addressing such behaviour in the event that it has occurred. We do not want reports that are made erroneously or in bad faith. There is no doubt of that. We do want to support the practice of making reports to police in good faith.

We must consider that the presence of the risk of defamation litigation potentially could be a contributing factor in causing some victims of crime to be reluctant to come forward and make a report; for example, this may be true for victims of such crimes as sexual assault or domestic violence.

Of course, there are a wide range of nuanced and complex reasons the victims of sexual assault or domestic violence may not come forward, or indeed may not feel safe to come forward. But if it is the case for any victim, the threat of possible defamation proceedings arising from making a report to police might influence their process of decision-making—if that threat may have the potential to be used to deter and to further silence or entrap a victim of sexual assault or domestic violence—then it is something that any good government should seek to address.

If we have the opportunity to remove or to mitigate one barrier to the practice of reporting to police crimes that certainly should be reported, we ought to avail ourselves of that opportunity. This reform is intended to empower victims of crime, particularly sexual crimes or crimes of domestic violence, to come forward to police without fear of retribution through a defamation claim. We know that the under-reporting of crime occurs across a range of areas.

If South Australians are for any reason under-reporting crimes that are negatively impacting them, it is important that we do what we can to stay ahead of protecting members of our community by empowering them with the peace of mind to know that reporting would not give rise to the possibility of them becoming subject to costly and stressful defamation lawsuits. It is in the individual's interest and it is in the public interest.

It is the case that, under the Defamation Act, absolute privilege is applied to other situations in which the free flow of information is widely understood to be in the public interest, such as courts or parliamentary proceedings. Statements that are made on occasions of absolute privilege have a complete defence to defamation lawsuits. It is not necessary to prove that a statement was reasonable, and proving malice will not defeat the defence. It is reasonable to suggest that members of the public reporting crime to police, which is certainly in the public interest, should be another occasion of absolute privilege.

Under the reforms contained in the bill, a person sued in defamation need only prove that they made the relevant communication to an official of the police force while such a person was acting in an official capacity and they will have this complete defence of defamation. This will only apply to a report to police. Communicating the allegations made in a police report to any other party, such as to a media outlet, would not attract absolute privilege. Any defamation claim arising out of statements made to the media about a report made to the police would still need to be defended using other defences.

This bill also seeks to make amendments to support South Australians who have been defamed by material posted on the internet. The proposed reforms 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.

If a person who has been defamed and wants a large online digital platform to remove the defamatory material that has been posted by a third party, the avenue under current arrangements is that they must bring an action for damages against the online platform. If they only sued the author or poster of the matter, they cannot obtain a take-down order against the digital platform.

This bill seeks to allow courts to make injunctions against digital intermediaries and publishers that are not a party to the action. A digital intermediary is any person or organisation that has provided an online service in relation to a digital publication but who was not the author, originator or poster of the material. This includes search engines, email messaging services, social networking platforms, 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 digital intermediary that is not a party to the action 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 from suing the digital intermediary as well, should they choose to do so. It will mean, however, that 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 defamatory material.

A relevant matter of note that we might contemplate is that of Duffy v Google. Dr Janice Duffy, who is a former SA Health researcher, was engaged for 12 years in a legal battle against Google. She sued the company twice. I understand she did so largely unrepresented, particularly during the initial proceedings, due to her financial circumstances. After Dr Duffy discovered defamatory information posted about herself online, she successfully argued in 2015 and 2023 that Google published defamatory extracts for an American website called Ripoff Report on its search engine page.

Dr Duffy notified the company and requested unsuccessfully that the material be removed. The Supreme Court ultimately ruled that Google had defamed Dr Duffy, a former SA Health researcher, as I said, through selections of results that were visible on its Australian search engine, as well as the pages in full in the event that users clicked through via the links. Despite Dr Duffy's victory, the financial impost and especially the emotional toll on her were enormous. Dr Duffy was quoted in the media as saying:

It was just horrific—truly horrific—when I realised I had to do the trial myself…the only things that I had was an old printer and my research skills...I honestly didn't think I was going to survive it.

In 2023, Auxiliary Justice Sydney Tilmouth said that Google was 'entirely reactive rather than proactive in the removals process'. He further said:

Dr Duffy and her legal advisors (when they were engaged) were effectively stuck on a never-ending treadmill from which she could not escape: of identifying complete URLs; securing removal by Google; only to find the same posts with altered URLs inexorably reappearing whilst Google stood by doing nothing…

Auxiliary Justice Tilmouth found that the company had the means at hand to easily locate the pages if it had wanted to. Under the arrangements that the proposed reforms seek to put in place, under the same circumstances Dr Duffy would still have had to make an application to a court. However, once it was determined that the material was defamatory, or once there was an injunction put in place, Dr Duffy would not have had to directly sue Google. A court could compel Google to act.

Surely, it cannot be argued that an individual member of the public pursuing a global tech giant such as Google under significant financial constraint constitutes a level playing field or could reasonably be considered a fair set of circumstances. This reform seeks to make significant steps towards enabling greater fairness for people who have been defamed through an online platform.

Finally, the bill seeks to set down principles that a court must take into account in applications for pre-action discovery relating to defamatory material that is published digitally. Under the Uniform Civil Rules, South Australian courts may order that a person disclose documents that will allow a potential plaintiff to decide whether or not to bring a civil action and, if so, against whom to bring it. 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.

The changes proposed in this bill represent sensible updates to ensure that South Australia's defamation laws are modern and balanced and, in particular that they are appropriately responsive to the needs and the expectations of the South Australian community. I commend the bill to the house.

Ms HOOD (Adelaide) (15:56): I, too, rise today to speak in support of this bill, which makes important amendments to the Defamation Act 2005. During my time as a print journalist at The Advertiser newspapers, I became keenly aware of the importance of defamation laws and the responsibility that comes with publishing information. Every article required careful consideration, not just of the facts but of the potential legal consequences of what was written. I saw firsthand how defamation laws protect reputations while also navigating the fine line between responsible reporting and free speech. This experience has given me a deep appreciation for the need to ensure our laws remain clear and fair within the evolving digital landscape in which we now live. As more of our interactions, our news, and even our reputations are shaped by digital platforms, it is essential that our laws keep pace.

This bill was a result of a national review of our uniform defamation laws, undertaken by state and territory attorneys-general, to ensure they strike the right balance between freedom of expression and the protection of individuals from reputational harm. In today's digital age, so many people live or share their lives online, whether that be on Facebook, Instagram, TikTok or YouTube. While there are positives to social media, we all know the pitfalls, where trolls spew hate and where interactions can quickly become toxic, with a single post or comment going viral in an instant causing lasting damage.

Enter defamation law, which aims to protect individuals from false or damaging statements that may cause harm to their reputation or standing in society. But under current defamation laws, if a person sues the author of a defamatory comment posted online, they could not obtain a takedown order to have it removed from the digital platform in which it appears. If they want a large digital platform such as Facebook or Google to take down the defamatory content, they must sue that platform as well.

Not only is this a David versus Goliath battle, but it places an unnecessary burden on victims, making it difficult to have harmful material taken down. This bill addresses that issue by empowering courts to order digital intermediaries like Facebook or Google to remove defamatory content, even if they are not party to the original defamation action. This ensures that individuals who have been defamed can more easily seek removal of harmful material without the added hurdle of having to sue a large digital corporation.

Additionally, this bill introduces clearer principles for courts to consider when handling pre-action discovery applications in defamation cases. Pre-action discovery allows courts to order digital platforms to disclose the identity or contact details of anonymous users who post defamatory content. This is an important tool for victims seeking justice, but it must be balanced against other considerations such as privacy, freedom of expression and broader public interest concerns.

One of the most important and significant amendments in this bill is the extension of absolute privilege to reports made to police. This means that victims and witnesses of crime will be protected from defamation lawsuits when making statements to police officers in their official capacity. This is particularly important for victims of sexual violence and domestic abuse, who may otherwise fear legal retaliation when coming forward to report an offence. However, it is important to clarify that this absolute privilege applies strictly to reports made to police and does not extend to statements made to the media or in the public about those reports.

There is a clear public interest in ensuring people feel safe to report crimes to police without fear of legal retaliation. These are sensible, necessary reforms that will provide stronger protections for victims of crime and ensure our defamation laws reflect the realities of the digital age, with fairer legal avenues for those defamed online and greater legal clarity for digital platforms.

As we undertake these reforms, it is important to recognise other reforms that are seeking to protect our children from the potential harms of social media. I commend our Premier, Peter Malinauskas, for undertaking that conversation nationally, which has driven a ban for young children being able to access having accounts online for social media—for example, Facebook and Instagram. I think part of that is educating our young people around the dangers of social media but also ensuring that they have a voice in other capacities. It was my absolute honour this week to attend the Active Citizenship Convention at Adelaide Oval, where we could actually see young people come together and have face-to-face conversations about our democracy and about citizenship. It was a really inspiring event.

Reforms to legislation, investment in education and a good dose of common sense where we teach our children about respect and caring for others can go a long way in protecting our community in this fast-paced, digital, changing world in which we all now live. With these comments, I commend the bill to the house.

Ms WORTLEY (Torrens) (16:01): I rise to support the Defamation (Miscellaneous) Amendment Bill. The 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. Any progress towards uniform laws and common understanding of laws across our nation is welcome.

We know that for several years now attorneys-general from the states and territories have raised the need for a uniform approach to the matter of defamation. A formal review made a range of recommendations and these are being adopted around Australia. I do not wish to speak at this stage on all aspects of these reforms, instead choosing—as someone with a media background—to focus on the changes applying to digital intermediaries.

A digital intermediary in the context of defamation law refers to a person or entity that provides or administers an online service that allows for the publication of digital content, such as social media posts, by others. The digital intermediary could be any kind of social media platform, from Facebook to a review blog to Instagram. They are not the original author of material that might be deemed to be defamatory. Yet the general rule for defamation has been that anyone in the chain of publication can be liable and held responsible for defamatory imputations.

It follows that digital intermediaries have often been the primary target of people seeking damages for the dissemination of material that affects their reputation. However, such action has rarely been successful, largely because of the difficulty of assigning a proportion of responsibility. In South Australia, around 65 per cent of plaintiffs in defamation cases lose, I am told, and the rate is very likely much higher when the target is a digital intermediary.

While not being made entirely immune, the new legal reforms around defamation in Australia provide certain protections for digital intermediaries. The reforms recognise the generally passive nature of social media platforms as well as the speed at which third-party content can be posted. At the same time, changes will mean the digital intermediary can be ordered to remove defamatory content and may be ordered to identify contacts and their details when this is deemed necessary to prevent ongoing damage to the reputation of a person or an entity. In some ways, this makes good sense. Apart from national uniformity, there are clearer guidelines about who is responsible for content.

Progress on this front, while welcome, will not change the fact that there will continue to be the dissemination of material that should not have been posted in the first place. While not qualifying as defamatory, statements can be made that are hurtful and misleading. Most often, we use electronic communication to our advantage in our working and private lives because it is fast and it is convenient. On the negative side, we still hear of ill-considered comments being made on the spur of the moment and even well-planned campaigns to unfairly affect someone's reputation.

Usually, such cases do not qualify as defamation because it is hard to determine there has been damage to one's reputation. Our government has, on a number of fronts, been addressing this matter of responsible use of electronic communication. I refer here to action on student access to mobile phones and the responsibilities of major international platforms. In this domain, the Malinauskas government has been a leader in protecting our children and young people on social media platforms.

The attraction of electronic media was appreciated as far back as the introduction of television to our state in the 1950s. An early survey about trusted sources of information rated television first, with newspapers and radio coming in at around equal second. The reason for the rating, respondents said, was that they could see the person delivering the information, even though television newsreaders took their material from the daily papers in those early days. This was an indication of the power of feeling closer to the provider of information.

There is rapid provision of information from a variety of electronic sources. It puts us closer to the sources. We enjoy the power of getting instant answers from a rich field of facts, personal beliefs and diverse opinions. Digital intermediaries, as well as the people who place the material on their platforms, will now have greater clarity about where they stand with regard to defamation, and that is a good thing.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (16:07): Can I just reiterate my thanks to the Attorney-General and his team, the Attorney-General's Department and also the speakers for their thoughtful contributions during the course of this debate. I welcome the opposition's support for this bill. I thank everybody for their work towards it.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: I did not have the opportunity to hear the minister in closing the second reading debate, and it is on me if there was reference to my availability for the purposes of the committee. Having flagged the questions or the nature of my inquiries at the relatively brief committee stage, I will just see if there is an opportunity for the government to deal with the context in which these changes have been made and how South Australia has come to the point that it has.

As I referred to in my second reading contribution, this has stemmed from what might be called the Voller litigation and the national Meeting of Attorneys-General that has followed in the period from roughly 2021 through to late 2023 and then into mid-2024. South Australia was readily on board with what was described in the communiqué in September 2023 as part B of those agreed reforms, and that is the one about extension of the absolute privilege in section 25.

It is what was described as part A of the communiqué, those measures affecting preliminary discovery that is the subject of the new section 21A and orders against non-parties that is the subject of the new section 37A, that are the components that South Australia was not as far down the road as other states, to put it that way, at an early stage. That led to some expressions of concern in the national media about where we were getting to, given that these are really reforms directed at the evolving digital landscape. So that is the context.

I guess the broad question that might cover it all in one go is: how has the government come to land on these part A reforms and how come it took longer than other states to get there? If the minister would care to include reference, as I understand, to the Law Society's input and any others, then that might also wrap it all up.

The Hon. K.A. HILDYARD: I hope that with this answer I can cover the couple of issues raised there. Firstly, as the member I think is aware, the stage 2 defamation reforms were reforms that were agreed to by the Standing Council of Attorneys-General, and those reforms that were discussed there include both the part A and part B amendments. The South Australian government, as the member is aware, introduced this Defamation (Miscellaneous) Amendment Bill to parliament on 29 August 2024 and it was received in this house on 4 February 2025.

This is, of course, as I have just spoken about, a national reform that came via that discussion at the Standing Council of Attorneys-General. It is that council that also conducted the public consultation process that the Law Society contributed to. It is my understanding that the submission to that broad process initiated by the Standing Council of Attorneys-General—the submissions into that process have actually been made public, so I know the member can avail himself of that submission. That was a process run through that standing council.

As with any significant reform to uniform or possible uniform national legislation, jurisdictions are always at various different stages in terms of the progression and implementation of those reforms. One of the things that we always have to be cognisant of is that when there is a change that is being contemplated across jurisdictions we, of course, uphold stronger provisions where we wish to in our particular jurisdiction, and that is certainly the case in relation to this legislation.

I would also say to the member that, whilst some jurisdictions have already passed and commenced the stage 2 reforms, others are still considering their responses and positions in relation to those reforms. I would say to the member notably that both Queensland and Western Australia have yet to implement any legislation to introduce those stage 2 reforms. That is certainly not a criticism of those jurisdictions, but more that they are, I guess, a reflection that we have been monitoring the progress across jurisdictions, and we appreciate that there are different starting points in each of those jurisdictions.

Some jurisdictions, yes, have moved ahead with consideration of the issues relevant to their state. We are doing the same. Other jurisdictions are still contemplating those issues and, as I said, Queensland and Western Australia are yet to introduce any legislation following the discussion about these reforms.

Remaining clauses (1 to 7), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (16:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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