Review of Model Defamation Provisions
Standing Council of Attorneys-General, Stage 2 Review of the Model Defamation Provisions (MDPs)
Part A amendments to the MDPs
Part A of the Stage 2 Review of the MDPs concerns internet intermediary liability in defamation for the publication of third-party content. New South Wales leads the Part A work.
On 9 December 2022, the Standing Council of Attorneys-General approved in principle final amendments for Part A of the Stage 2 Review of the MDPs. This is subject to final agreement in the first half of 2023. View the public communique for the meeting.
The Part A reforms that have been agreed in principle for commencement from 1 January 2024 are a pragmatic approach that is intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries.
The amendments include:
- Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results
- A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B)
- A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online
- A requirement that courts consider balancing factors when making preliminary discovery orders
- Updates to the mandatory requirements for an offer to make amends for online publications
Part A exposure draft amendments to the MDPs
On 12 August 2022, the Meeting of Attorneys-General (as it was then) agreed to release for public consultation the draft Part A Model Defamation Amendment Provisions and an accompanying Background Paper. A Summary Paper is also available for ease of reference – it is a short extract of the Background Paper.
The due date for submissions was Friday 9 September 2022.
The public submissions are available to review here.
Stage 2 Discussion Paper
On 31 March 2021, Attorneys-General agreed to release a discussion paper for the Stage 2 Review.
The Review of Model Defamation Provisions – Stage 2 Discussion Paper was the first step in the second stage of the review of the MDPs.
View an accessible text-version of the Discussion Paper images
Attorneys-General sought written submissions in response to the Stage 2 Discussion Paper.
All public submissions are available to review here.
Stage 1 Review of the MDPs
The Model Defamation Amendment Provisions have commenced in New South Wales, Victoria, South Australia, Queensland, Tasmania and the Australian Capital Territory.
This followed the former Council of Attorneys-General (CAG) approving amendments to Australia's Model Defamation Provisions (MDPs) on 27 July 2020, marking the end of the Stage 1 Review of the MDPs.
On 31 March 2021, Attorneys-General agreed that New South Wales, South Australia, Victoria and all other jurisdictions that are able to do so will commence the Model Defamation Amendment Provisions 2020 on 1 July 2021, and remaining jurisdictions will commence those provisions as soon as possible thereafter.
The Model Defamation Amendment Provisions can be viewed on the Parliamentary Counsel Committee's website. Consolidated Model Defamation Provisions (as at 27 July 2020) including amendments in Model Defamation Amendment Provisions 2020 can be viewed here.
The amendments follow wide-ranging consultations with media companies, peak legal bodies, academics, digital platforms and lawyers who represent both plaintiffs and defendants. The CAG's Defamation Working Party considered more than 70 submissions (see below).
The amendments have reset defamation law by improving the balance between protecting individual reputations and freedom of expression, particularly in matters of public interest.
Key changes include:
- Clarification of the operation of the cap on non-economic damages;
- Introduction of a new public interest defence modelled on section 4 of the UK Defamation Act 2013;
- Introduction of a serious harm threshold for defamation claims, to be determined by the judicial officer as soon as practicable before the trial;
- Introduction of a single publication rule which will enable the limitation period to run from the first publication of alleged defamatory material;
- A requirement that concerns notices must be served with sufficient time for an offer to make amends to be made before proceedings can be commenced;
- Introduction of a new defence for peer reviewed matters published in academic or scientific journals.
CAG also agreed to progress a second stage reform process focusing on the responsibilities and liability of digital platforms for defamatory content published online, as well as other issues Attorneys-General ask the DWP to consider.