With a crackdown on social media platforms, recent reform by NSW, Victoria, and SA has probed the question again as to when a social media platform is to be held liable for defamation content posted on their site.

As news media publishing has begun its restructure, many have called for regulation over parties posting defamatory content online. It is incredibly easy to hide your identity on sites such as Facebook or Twitter, which has resulted in many bad apples manipulating the system to push their own agenda or libel others. Many victims are starting to point the finger at giants like Facebook where the onus of accountability is assumed to fall on the platform provider.

NSW has led national reform in this area, with new defamation laws coming into existence on 1 July 2021. These laws will address, amongst other things, free speech claims, sexual assault and harassment online, the burden of responsibility, and introduce a ‘serious harm’ test.

Earlier this week, the NSW government presented a paper on the role of an ‘internet intermediary’ and online forum administrators as the key parties that should be held liable for defamatory content of a third party on their site.

Interestingly enough, the NSW government noted that the “responsibility of the original author of the defamatory material is not in question”. This may initially be viewed due to the difficulty of identifying the true identity of a defamer, but the NSW government focused on the core issue as being the manner that enables publication. Due to the way social media platforms, search engines and web page hosts provide ‘snippets’ of material in search results, any of these parties may be regarded as a publisher within the definition of defamation law. Additionally, the NSW government has considered overseas legislation in their reform, particularly noting an immunity exception to online publishers. The purpose here is to find a balance of not overly penalising publishers, nor limiting free speech, nor granting free roam to tech giants.

Moreover, the High Court is in the process of hearing an appeal by Nine Entertainment Co, over alleged defamatory comments posted by third parties on their Facebook pages. This case is sure to further the development of defamation law in Australia and hopefully round up the proposed regulatory reform.