Both Facebook and Google have put their support behind potential changes to Australia’s defamation laws.
The Defamation Working Party is currently considering a host of potential changes to existing laws, detailed in the Draft of the Model Defamation Amendment Provisions 2020, including stronger pre-trial procedures such as a “serious harm” threshold and a single publication rule.
As part of the consultation process, Facebook and Google have shared submissions supporting a number of the changes.
“Australia’s defamation laws are in many ways not fit-for-purpose in the digital world. The existing model defamation framework is primarily designed for a world where there are clear gatekeepers who control the flow of information, and some concepts in the model defamation framework are challenged by the increasing use of technology by Australians and the decentralised nature of the internet,” said Facebook.
“Facebook strongly supports the CAG’s [Council of Attorneys-General] objectives to modernise Australia’s defamation laws, and we agree with many of the sensible suggestions contained in the review’s discussion paper. In particular, we believe enhanced pre-trial procedures, a new serious harm threshold and a single publication rule would provide clarity, improve efficiency of resolution for impacted users, and save the community the costs of unnecessary litigation.”
As part of its submission, Facebook discussed the Supreme Court’s ruling on the Dylan Voller case, where it was determined media outlets would be held legally responsible for comments made on social media pages.
“Traditional principles of knowledge and editorial control need to be looked at closely in a world where people are increasingly communicating online, the volume of content is so much greater, and platforms are providing an avenue for self-publication,” the tech giant said.
“If the Voller decision is upheld, all secondary publishers could face disincentives to participate online and enable debate and free expression.”
Similarly, Google put its support behind the introduction of a single publication rule and a serious harm threshold.
Google pointed to scenarios where it has been sued under existing defamation laws for articles published by original authors that have been made available through a secondary publishers’ site.
“It is therefore necessary that the single publication rule encompass secondary publishers, as set out in Google’s submissions dated 30 April 2019, and the DIGI submissions dated 14 May 2019, amongst others, failing which the intention of the amendments will be easily circumvented. Rather than suing the original publishers of matter, plaintiffs will instead sue secondary publishers, which would only increase the burden on the courts,” Google said.
Google pointed to the UK’s original publisher provisions as a potential legal scaffold.