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Review recommends defamation cyber-age reboot

Issued: Thursday, 7 June 2018

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NSW will lead a push to modernise defamation law across the country in response to a NSW review that found amendments should be considered to improve the way the justice system deals with digital media cases.

Attorney General Mark Speakman said that legislation should be closely examined to ensure it responds to the changing media landscape, including the ever-increasing use of social media, blogs and online publications.

"There's been a huge rise in defamation cases involving publications on social media sites in recent years, which is why we need the laws to be more tech-savvy," he said.

The review recommends that Australia's states and territories consider whether:

  • a 'serious harm' threshold should be introduced, which would discourage trivial matters proceeding to court and will help reduce court backlogs;
  • a 'single publication' rule should be adopted so the period within which a plaintiff can bring a defamation action commences on the date of the first publication, rather than starting afresh after each subsequent publication; and
  • specific 'safe harbour' and 'takedown' provisions should be developed to protect hosts and carriers of digital content from liability for content produced by third parties.

Mr Speakman said defamation laws have been coordinated at a national level since 2005 to ensure there is uniformity across all states and territories.

"NSW is driving reform of defamation law at a national level by urging the Council of Attorneys General (CAG) to work together to update our laws. At tomorrow's CAG meeting in Perth, I will ask my federal, state and territory counterparts to explore reforms to enable Australian defamation law to upgrade to the cyber-age," he said.

The report recommends the consideration of suitable defences for internet sites such as online newspapers and blogs so authors rather than hosts are responsible for the publication of defamatory material by third parties published in comments boards.

"It is important all Australian jurisdictions work closely to ensure we strike the right balance between freedom of expression, publication of material in the public interest and protecting individual's reputations," he said.

A range of expert stakeholders were consulted during the review including major media outlets, the judiciary, lawyers and the NSW Law Society. The review can be found at: