This month was supposed to mark the restoration of legal certainty after one of the most unfortunate decisions ever handed down by the High Court.
The nation’s governments had agreed that something had to be done about the court’s 2021 decision in defamation proceedings launched by Dylan Voller.
But when a solution depends on consistent legislation across this diverse nation, there is always a risk that some jurisdictions might go their own way.
As things stand now, the goal of national uniformity for defamation law is in tatters.
Western Australia and the Northern Territory had already declined to introduce earlier aspects of “uniform” defamation laws and now South Australia has decided not to be part of the latest tranche of reforms that seek to address the Voller problem.
Voller had been abused by social media trolls after he featured in a 2016 Four Corners Program about the detention of Aborigines at the Don Dale Youth Detention Centre in the Northern Territory.
But instead of pursuing those who posted remarks about him on Facebook, Voller wanted to sue media organisations that knew nothing about those comments until they were inserted into Facebook pages owned by the media.
The case was eventually settled, but not before Voller won a preliminary ruling from the High Court that has appalling consequences. Governments had no real option but to intervene.
The Voller decision meant anyone who runs a Facebook page could be sued over defamatory comments they did not write that had been posted on their pages by third parties without their knowledge. That meant innocent parties might be forced to pay for the wrongs of others.
That preliminary ruling carried the risk that plaintiffs might ignore the originators of online defamations and pursue those who, while not intentionally involved, might have attractive bank balances.
To be fair, the High Court had been placed in a dreadful position. The pace of technological change had outstripped the pace of legal reform.
The judges had been obliged to apply precedents that were decades out of date and incapable of dealing fairly with a problem that did not exist when earlier decisions had been handed down.
The latest reform effort came into effect this month in NSW and the ACT which makes them, according to NSW Attorney-General Michael Daley, the first jurisdictions to modernise defamation law for the digital age.
South Australia’s decision to isolate itself from these changes is regrettable. But a greater problem is the federal government’s failure to deliver on its agreed part of the Voller solution. That can only add to the risk and uncertainty in online defamation disputes.
The original intention of the nation’s governments, while unstated, was clear: to prevent defamation law, when applied to publications online, from following the nonsensical path that had been set by the High Court in the Voller case. NSW led a national reform project and the Albanese government agreed last year to make a small but important change to make it clear that online defamation could be covered by the state Defamation Acts without interference from the federal Online Safety Act.
The reforms prepared by NSW are sensible and balanced. They were put together by a team of experts after extensive consultations that included a warning from the Law Council of Australia about the Online Safety Act and the need for consistency with the planned model provisions of the state defamation acts.
But while the federal government agreed to change the Online Safety Act, it has not yet done so.
The need to change the federal law was clearly on the mind of the nation’s attorneys-general when they met on September 22 last year.
They issued a communique saying they had approved, by majority, final amendments to model defamation provisions and “the Australian government will prepare an exemption to state and territory defamation laws from section 235(1) of the Online Safety Act 2021 (Cth)”.
That provision says a law of a state or territory “has no effect” if it seeks to impose liability or requirements on several types of online entities – many of which are now covered by new conditional defences and procedures in the reformed defamation acts in NSW and the ACT. On June 27, defamation specialist Robert Todd and a team of lawyers from global law firm Ashurst wrote that stakeholders had expressed concern about overlaps and potential inconsistencies between section 235(1) of the Online Safety Act and parts of the reformed defamation acts.
Todd and his team warned this might lead to confusion about when a digital intermediary will be liable for defamation.
This is in line with the view of the Law Council of Australia, which warned of potential confusion and additional legal costs.
“The Law Council considers it appropriate for the Australian government to consider the operation of subsection 235(1) of the OSA in the interests of providing greater clarity and consistency between the laws of the Commonwealth and the states and territories,” it said in a 2022 submission to the NSW government.
“There is a risk that duplication will increase costs and confusion for parties in defamation disputes,” the Law Council said.
If that is what awaits online publishers and those who believe they have been defamed, nobody should point the finger at the NSW Attorney-General Michael Daley, who thought he had a deal.
The federal government is believed to be committed to changing the Online Safety Act but until something emerges from the Department of Communications online defamation has an additional and unnecessary element of uncertainty.
