The country’s chief legal officers agreed to prioritise online defamation reform this year and NSW Attorney-General Mark Speakman setting out a suite of potential changes for public comment.
Sue Chrysanthou SC,right,and solicitor Rebekah Giles,are among the defamation barristers warning potential changes to the law don’t work as intended.Kate Geraghty
The reform push follows that media outlets are legally responsible as “publishers” for third parties’ comments on their Facebook pages. The decision had wider implications for any operator of a social media page on which third parties may comment.
The court was not asked to decide whether media outlets had effective defences available to them under the existing law. The background paper released last month said the potential changes would offer new protections to all administrators of social media pages.
Defamation barristers Sue Chrysanthou,SC,and Kieran Smark,SC,along with solicitors Rebekah Giles and Patrick George,act regularly but not exclusively for plaintiffs. They say in a submission on the background paper,submitted on Friday,that the wording of the potential new law fails to capture social media page administrators.
The liability of “people or organisations who have social media accounts such as a small business or community sporting group on Facebook,or local book club on Twitter or hobby club on Instagram ... is not addressed by the model provisions,” the submission says.
The lawyers say the wording of the draft provisions captures the providers of online services,such as Facebook,but not social media account holders,and would give “a privileged position to internet giants over all other internet users,including Australia’s media companies who promote their publications on social media”.
“No logical policy reasoning has been advanced for this preferential treatment,” the submission says.
Under one proposal in the background paper,“internet intermediaries” including Facebook would have a so-called “safe harbour” defence for third party comments in specific circumstances,including if a potential plaintiff already had enough information to sue the person who posted the comment. The definition of internet intermediary does not extend to social media page administrators,the submission says.
Under an alternative proposal,a defence of “innocent dissemination” would be available in some circumstances. Intermediaries would need to have an easily-accessible complaints procedure in place and take steps within 14 days of any complaint to prevent access to the material.
The authors of the paper,who are backed by more than 60 signatories from varied legal backgrounds including barrister and former judge Greg James,KC,and lawyers who work regularly but not only for plaintiffs,say the proposals at minimum need “significant redrafting”.
The states and territories “should not prefer the interest of predominately American and Chinese corporations who profit in the hundreds of billions of dollars each year from the dissemination of defamatory content on their platforms over individual Australians irreparably harmed by false and defamatory content”,the submission says.
The lawyers favour a reworked version of the innocent dissemination defence,which already exists.
“Presently the local council library does not have immunity for being sued for a defamatory book on its shelves,but it is able to rely on the defence of innocent dissemination if it has not been notified of the book’s defamatory character,” the submission says.
“YouTube is functionally no different to a local council library and there is no public policy reason that it should be afforded greater protections from liability in defamation.”
Public submissions on the proposals closed on Friday.
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