Submission to Review of the Model Defamation Provisions (Stage 2)

Abstract

This submission was made in response to the Discussion Paper (March 2021) in Stage 2 of the Review of the Australian Model Defamation Provisions. This Review is conducted by the Defamation Working Party, on behalf of the Attorneys-General, and led by the NSW Department of Communities and Justice. The submission addresses both parts of the Discussion Paper: internet intermediary liability in defamation for the publication of third-party content; and the extension of the absolute privilege defence to reports of alleged criminal conduct to police and statutory investigative bodies, and reports of misconduct to employers and professional disciplinary bodies. The submission argues that internet platforms should be subject to interim take-down orders issued according to a threshold that is lower than that currently applied, because of the unique nature and impact of online communications, and the because of the need to preserve claims that have yet to be put to trial. Courts should also be empowered to make orders blocking content worldwide. On the matter of absolute privilege, the submission argues that this defence should not be extended to reports to police, statutory investigative bodies, employers, and professional disciplinary bodies. The qualified privilege defence adequately protects such complainants from any 'chilling effects' of defamation law, and clear evidence is needed of a causal link between the tort's operation in practice and the preparedness of individuals to make such complaints. Further, the nature and purpose of the absolute privilege defence, as an exceptional mechanism that prevents courts from trying otherwise justiciable causes of action, should remain limited to occasions of parliamentary, or judicial or quasi-judicial, proceedings.