Information Privacy

The Privacy and Other Legislation Amendment Bill 2024 (Cth) amends the Privacy Act 1988 (Cth) to implement an initial tranche of reforms arising from the proposals of the 2022 review of the Privacy Act. 

Key reforms include a statutory tort for serious invasions of privacy, establishing a Children’s Online Privacy Code, new powers for the Minister to direct the Commissioner to develop and register Australian Privacy Principles (APP) codes and conduct public inquiries, a new civil penalty for acts and practices which interfere with the privacy of individuals (but fall below the threshold of ‘serious’ invasion) and a civil penalty infringement notice scheme for specific APP and other obligations. The Criminal Code Act 1995 (Cthj) is amended to introduce two offences for doxxing, ie the menacing or harassing release of personal data using a carriage service. 

The Bill does not remove the current small business exemption in the Privacy Act. 

 APP codes and temporary APP codes developed 

The APP codes are written codes of practice about information privacy that set out how the APPs are to be applied or complied with by specified APP entities and can impose additional requirements. Once registered, APP codes are binding on the specified APP entities. Currently APP codes may be developed by ‘code developers’ (such as a body representing a group of APP entities) on their own initiative or by request of the Commissioner (if satisfied it is in the public interest). If the Commissioner’s request has not been complied with, or the Commissioner has decided not to register the APP code, the Commissioner can also develop an APP code if ‘satisfied that it is in public interest’ (ss 26E, 26F and 26G). 

 Schedule 1, Part 2 of the Bill amends the Privacy Act to enable the Minister to direct the Commissioner to develop and register APP codes and temporary APP codes. These codes must not cover certain acts and practices which are exempt under the Privacy Act (such as individuals acting in a non-business capacity, organisations acting under Commonwealth contract and employee records). The Minister may direct the Commissioner to develop an APP code ‘if the Minister is satisfied that it is in the public interest’. The Minister may direct the Commissioner to develop a temporary APP code if the Minister is satisfied that ‘it is in the public interest’ and ‘the code should be developed urgently’. The period a temporary APP code may be in force ‘must not be longer than 12 months’. 

Although a registered APP code is a legislative instrument (section 26B) and subject to the usual parliamentary disallowance processes, the Minister’s written directions to the Commissioner would not be legislative instruments (subsections 26GA(3) and 26GB(3)). A temporary APP code would not be subject to the usual parliamentary disallowance processes (subsection 26GB(8)). This may represent a significant new ministerial power to direct the Commissioner to impose privacy requirements on specified APP entities without parliamentary oversight. 

 Penalties and remedies 

Currently section 13G of the Privacy Act outlines civil penalties which may be imposed for ‘serious’ or ‘repeated’ interferences with privacy. The amendments in Schedule 1, Part 8 will refocus section 13G on ‘serious’ interferences with privacy. Whether an act or practice was done or engaged in ‘repeatedly or continuously’ will be one of the factors which a court may take into account in determining if an interference with privacy was ‘serious’. The maximum amounts of the penalties in section 13G (substantially increased in 2022) would remain the same. Other provisions will expand the Commissioner’s options to seek penalties and other remedies for interferences with privacy which may not reach the threshold of being ‘serious’. Section 13H creates a civil penalty if an entity does an act, or engages in a practice, which interferes with the privacy of an individual. The maximum penalty will  be 2,000 penalty units for an individual (currently $660,000) or 10,000 penalty units for a body corporate ($3,300,000). Section 13K and amendments to section 80UB introduce a scheme for civil penalty infringement notices to be issued for breaches of a number of specific obligations under the APPs and non-compliant eligible data breach statements. Those obligations include APP 1.4 (failure to include required information in an APP privacy policy) or non-compliance with subsection 26WK(3) which sets out what must be contained in an eligible data breach statement. 

Paragraph 13K(1)(x) would allow other APP obligations to be prescribed by regulation as part of the infringement notice scheme. The maximum civil penalty for a breach of subsections 13K(1) and (2) would be 200 penalty units (currently $66,000). However, under subsection 104(2) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) the amount payable under an infringement notice for one alleged contravention would be 12 penalty units for an individual (currently $3,960) and 60 penalty units for a body corporate (currently $19,800). Further amendments to section 80UB of the Privacy Act modify the applicable number of penalty units for infringement notices given to publicly listed corporations which would be worked out by ‘multiplying the number of alleged contraventions by 200’. Schedule 1, Part 9 inserts section 80UA which provides that Federal Courts will also have the power to make a range of orders in civil penalty proceedings where a contravention of a civil penalty provision under the Privacy Act has been established. 

  Public inquiries 

Part IV of the Privacy Act deals with the functions of the Commissioner. Schedule 1, Part 10 would insert provisions into Part IV to allow the Minister to direct the Commissioner to conduct, or to approve the Commissioner conducting, public inquiries into specified matters relating to privacy. The Minister’s direction or approval would not be a legislative instrument. For the purposes of a public inquiry, the Commissioner would be able invite public submissions and use existing investigation powers to obtain documents and examine witnesses (sections 44 and 45). After completing the public inquiry, Commissioner must prepare a written report for the Minister. If any entities have been specified in the Minister’s direction or approval of the public inquiry, they will also receive a copy. The Minister must table a copy before each House of the Parliament within 15 sitting days and the Commissioner must make the report publicly available (unless the Minister otherwise directs). 

 Monitoring and investigation powers 

Schedule 1, Part 14 iinsert new divisions into Part VIB to add monitoring and investigation powers set out in the Regulatory Powers (Standard Provisions) Act 2014 (Cth). These powers include entry, search and seizure powers. The Explanatory Memorandum (p. 65) states: Bringing the Information Commissioner’s regulatory powers in line with the standard provisions would provide additional powers and greater safeguards to ensure they are robust and align with best practice. Additionally, ensuring uniformity with the standard provisions would bring the Information Commissioner’s powers in line with comparable domestic regulators, and increase legal certainty for entities and individuals who are subject to those powers. 

Children’s Online Privacy Code 

The introduction of a Children’s Online Privacy Code (COPC) was a proposal of the Privacy Act review, with the Government indicating $3 million funding for the OAIC to develop a Children’s Online Privacy Code (COPC) over 3 years. Schedule 1, Part 4 contains the provisions to establish a COPC. Section 26GC provides that the Commissioner must develop and register an APP code about online privacy for children within 24 months. Item 30 inserts a definition of the term child into the Privacy Act meaning ‘an individual who has not reached 18 years’ which is consistent with the Online Safety Act 2021 and UK’s age appropriate design code. 

 The Commissioner will have a broad discretion regarding who ‘may’ be consulted in developing the COPC (subsection 26GC(8)). This differs from the Privacy Act review which recommended developers ‘should be required to consult broadly with children, parents, child development experts, child-welfare advocates and industry’ (p. 157). Before registering the COPC, the Commissioner must make a draft of the COPC available, invite and give consideration to public submissions and consult with the eSafety Commissioner and the National Children’s Commissioner (subsection 26GC(9)). The COPC must set out how the APPs are to be applied or complied with in relation to the privacy of children. 

The COPC will not cover some acts and practices that are exempt under the Privacy Act such as individuals acting in non‑business capacity, organisations acting under Commonwealth contract or employee records. Under subsection 26GC(5) the entities  bound by the COPC are providers of social media services, relevant electronic services or designated internet services (within the meaning of the Online Safety Act 2021 (Cth) who are ‘likely to be accessed by children’ and are not providing a health service. There will also be a capacity to specify other APP entities for the purposes of the COPC. 

  Emergency declarations 

Part VIA of the Privacy Act contains provisions dealing with personal information in emergencies or disasters. This includes provision for the Prime Minister or the Minister to make a declaration of emergency in certain circumstances to allow for the wider sharing of information (sections 80J and 80K). Schedule 1, Part 3 amends Part VIA to require a more targeted approach to emergency declarations. pSection 80KA will set out the matters which must be specified in an emergency declaration. These matters include: the kind or kinds of personal information to which the declaration applies the entity or class of entities that may collect, use or disclose the personal information and the entity or class of entities that the personal information may be disclosed to one or more permitted purposes of the collection, use or disclosure (these must be purposes which directly relate to the Commonwealth’s emergency or disaster response). 

Eligible data breach declarations 

Part IIIC of the Privacy Act establishes a scheme which requires regulated entities to notify certain individuals and the Commissioner about ‘eligible data breaches’. Data breaches are ‘eligible’ if they are likely to result in serious harm to any of the individuals to whom the information relates (section 26WE). Schedule 1, Part 7 of the Bill inserts Division 5 into Part IIIC to allow the Minister to make eligible data breach declarations which, similarly to emergency declarations, would permit ‘collections, uses and disclosures of personal information…to prevent or reduce the risk of harm to individuals’. These declarations can be made where the Minister is satisfied it is ‘necessary or appropriate’ to prevent or reduce a risk of harm arising from the misuse of personal information from an eligible data breach (subsection 26X(1)). 

Consistent with amendments to facilitate emergency declarations, an eligible data breach declaration must specify particular matters: the kind or kinds of personal information to which the declaration applies the entity or class of entities that may collect, use or disclose the personal information the entity or class of entities that the personal information may be disclosed to one or more permitted purposes of the collection, use or disclosure. A ‘permitted purpose’ must be a purpose directly related to preventing or reducing a risk of harm to one or more individuals at risk from the eligible data breach. 

  Restrictions on disclosures and disallowance 

For both emergency and eligible data breach declarations the specified entities or classes of entities may include State and Territory authorities but must not be, or include, a media organisation (subsections 80KA(2) and 26X(3)). Under subsections 80J(3) and 26X(10) both emergency and eligible data breach declarations would be legislative instruments  not be subject to the usual parliamentary disallowance process, justified as necessary ‘to ensure that decisive action can be taken’ and ‘to establish an immediate, clear and certain legal basis for entities to handle personal information’. 

  Overseas data flows 

APP 8 addresses cross-border disclosures of personal information. In particular, APP 8.1 provides that before an APP entity discloses personal information about an individual to an overseas recipient, the entity must take ‘reasonable steps’ to ensure that the recipient does not breach the APPs (except APP 1) in relation to that information. This operates in conjunction with section 16C of the Privacy Act which essentially makes APP entities accountable for breaches of the APPs where they have disclosed personal information about an individual to an overseas recipient under APP 8. APP 8.2 provides exceptions from the obligations under APP 8.1. This includes APP 8.2(a) which provides an exception where the recipient is subject to a law or binding scheme with ‘substantially similar’ protections for personal information as the APPs. The amendments in Schedule 1, Part 6 will allow the Minister to prescribe countries and binding schemes which would fall under the existing exception in APP 8.2(a). 

 Paragraph 8.2(aa) amends APP 8.2 to include a new exception to APP 8.1 where countries or binding schemes are prescribed under APP 8.3. Amendments are made to the regulation-making power in section 100 of the Privacy Act to provide that the Minister may only prescribe a country or binding scheme where: the laws of the country, or the binding scheme protect personal information in a way that, ‘overall, is at least substantially similar to the way in which’ the APPs protect information and there are mechanisms that the individual can access to take action to enforce that protection. 

The Attorney-General’s second reading speech indicated the amendments would give businesses and individuals ‘greater confidence’ in the safety of personal information and to ‘reduce costs’ for businesses when entering into arrangements with overseas entities. Article 45(3) of the EU’s GDPR contains comparable provision for the European Commission to decide that a non-EU country ‘has an adequate level of data protection’ to facilitate legal international data flows without further safeguards. Countries which have a comparable provision in privacy laws include Japan and New Zealand. 

  Automated decision-making and privacy policies 

Currently, the APPs regulate the content and availability of privacy policies of APP entities (APP 1.3–1.6). Schedule 1, Part 15 introduces new requirements for APP entities concerning the information that must be included in their privacy policies about the kinds of personal information used, and types of decisions made, in automated decision-making. Subclause APP 1.7 requires an APP entity to include certain information if: the entity has arranged for a computer program to make, or do a thing that is substantially and directly related to making, a decision the decision could reasonably be expected to significantly affect the rights or interests of an individual and personal information about the individual is used in the operation of the computer program to make the decision or do the thing that is substantially and directly related to making the decision. The information which must be included in the privacy policy is set out in subclause APP 1.8. These are: the kinds of personal information used in the operation of such computer programs the kinds of such decisions made solely by the operation of such computer programs the kinds of such decisions for which a thing, that is substantially and directly related to making the decision, is done by the operation of such computer programs. The amendments in Schedule 1, Part 15 would commence 24 months after Royal Assent. 

  Statutory tort for serious invasions of privacy 

This blog - and several submissions by myself to parliamentary and law reform inquiries - has noted a long succession of recommendations for establishment of a statutory tort for serious invasions of privacy. The Privacy Act review proposed the tort should be introduced ‘in the form recommended by' the Australia Law Reform Commission in its Serious Invasions of Privacy in the Digital Era’report. Schedule 2 of the Bill inserts a Schedule 2 into the Privacy Act to establish a cause of action for serious invasions of privacy. The intention is that the Schedule will be read and construed separately from the rest of the Privacy Act. The new provisions in Schedule 2 would commence on the earlier of Proclamation or 6 months after Royal Assent. 

Under subclause 7(1), a plaintiff will have a cause of action in tort against a defendant where: the defendant invaded the plaintiff’s privacy by doing one or both of the following: intruding upon the plaintiff’s seclusion misusing information that relates to the plaintiff and a person in the position of the plaintiff would have had ‘a reasonable expectation of privacy in all of the circumstances’ the invasion of privacy was intentional or reckless and the invasion of privacy was serious. The term intruding upon the seclusion of an individual is defined in subclause 6(1) as including (but not being limited to) ‘physically intruding into the person’s private space’ and ‘watching, listening to or recording the person’s private activities or private affairs’. 'Misusing information that relates to an individual' is be defined as including (but not being limited to) ‘collecting, using or disclosing information about the individual’. Guidance on a threshold regarding how closely information must ‘relate to the plaintiff’ does not appear to be included. 

Subclause 7(7) clarifies that where a defendant invades the plaintiff’s privacy by misusing information that relates to the plaintiff, ‘it is immaterial whether the information was true’. Under subclause 7(2) the new tort would be ‘actionable without proof of damage’. A range of factors are listed which a court may consider in determining whether ‘a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances’ and whether the invasion of privacy was serious (subclauses 7(5) and (6)). Clause 14 will set limitation periods within which actions must be commenced. Plaintiffs must commence an action before the earlier of ‘1 year after the day on which the plaintiff became aware of the invasion of privacy’ and ‘the day that is 3 years after the invasion of privacy occurred’. If the plaintiff was under 18 at the time when the invasion of privacy occurred, that person must commence an action before their 21st birthday. 

 Tort Defences 

Where a defendant relies on a public interest in the invasion of privacy, the plaintiff must satisfy the court that this public interest is outweighed by the public interest in protecting the plaintiff’s privacy (subclause 7(3)). Clause 8 lists a range of other defences to claims of invasion of privacy including: where it was required or authorised by or under an Australian law or court/tribunal order where the plaintiff, or another authorised person, expressly or impliedly consented where the defendant reasonably believed it was necessary ‘to prevent or lessen a serious threat to the life, health or safety of a person’ where it was both incidental to the exercise of a lawful right of defence of persons or property and ‘proportionate, necessary and reasonable’. 

It will also be a defence to a cause of action where the invasion of privacy has occurred ‘by publishing’ within the meaning of defamation law and there is a defamation law ‘related defence’ which the defendant is able to establish. These ‘related defences’ would be: a defence of absolute privilege (such as publication of parliamentary or court proceedings) a defence for publication of public documents a defence of fair report of proceedings of public concern. These three defences are not the only defences available in defamation law: the Explanatory Memorandum indicates the other defences were not included ‘because they are not relevant in the context of the statutory tort’. 

Remedies and damages under the Tort

Under the new tort, courts may award damages for ‘emotional distress’. Courts may also award exemplary or punitive damages for invasions of privacy in exceptional circumstances (damages intended to deter or sanction conduct) but will not be able to award aggravated damages (intended to compensate the plaintiff for egregious harm). Subclause 11(5) sets out a maximum cap for damages for non-economic loss and exemplary or punitive damages, which must not exceed the greater of $478,550 or the maximum amount of damages for non-economic loss under defamation law. The model defamation provisions include a mechanism to adjust the maximum damages amount over time (s 35). An ongoing link to the level of defamation damages for non-economic loss means the maximum damages available for invasions of privacy is likely to rise with inflation. Courts will also be able to grant a range of other remedies in addition to, or instead of, damages ‘as the court thinks appropriate in the circumstances’. 

 Journalism and other exclusions 

Clause 15 provides Schedule 2 would not apply to an invasion of privacy to the extent it involves the collection, preparation for publication or publication of journalistic material by a journalist, their employer, a person assisting employed or engaged by the journalist’s employer or a person assisting a journalist in a professional capacity. The scope of this exclusion is limited by the definition of certain terms. The term journalist is defined as a person who ‘works in a professional capacity as a journalist’ and is subject to ‘standards of professional conduct’ or ‘a code of practice’ that applies to journalists (subclause 15(2)). Material will be journalistic material where it: has the character of news, current affairs or a documentary; or consists of commentary or opinion on, or analysis of, news, current affairs or a documentary (subclause 15(3)). Schedule 2 would also not apply to invasions of privacy by: an enforcement body to the extent the enforcement body believes it is reasonably necessary for enforcement related activities (using the definitions in subsection 6(1) of the Privacy Act), an intelligence agency (using the definition in subsection 6(1) of the Privacy Act), or to the extent it involves a disclosure to, or by, an intelligence agency a person who is under 18 years of age (clauses 16, 17 and 18). 

Doxxing offences 

Schedule 3 contains amendments to the Criminal Code to insert two new doxxing offences. Section 474.17C would make it an offence to use a carriage service to make available, publish or otherwise distribute ‘personal data’ in a way that ‘reasonable persons would regard as being, in all the circumstances, menacing or harassing’ towards the individuals concerned. The maximum penalty for this offence would be 6 years imprisonment. Unlike the existing Privacy Act, which uses a concept of ‘personal information’, the definition of personal data in the new offence would be limited to ‘information about the individual that enables the individual to be identified, contacted or located’. This definition would expressly include a number of types of personal data such as an individual’s name, image, telephone number, email address, online account, residential or work address, place of education or place of worship. 

 Section 474.17D makes it an offence to use a carriage service to make available, publish or otherwise distribute the ‘personal data’ of ‘one or more members of a group’. Similar to the above offence, the person must engage in the conduct in a way that reasonable persons would regard as being, in all the circumstances, menacing or harassing towards the members. For this offence to apply, the person must engage in the conduct ‘in whole or in part’ because of their belief that ‘the group is distinguished by one or more protected attributes, such as race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality or national or ethnic origin’. However, it will be immaterial whether the group is actually distinguished by the relevant attributes (subsection 474.17D(3)). The maximum penalty for this offence would be 7 years imprisonment. 

 Other 

 Schedule 1, Part 1 amends the objects of the Privacy Act to clarify that the promotion of the protection of privacy is ‘with respect to’ personal information as well as to ‘recognise the public interest in protecting privacy’ (paragraphs 2A(a) and (aa)). Schedule 1, Part 5 amends APP 11, ie the obligation of APP entities to take reasonable steps to protect the security of personal information which they hold and destroy or de-identify information they no longer need. APP 11.3 clarifies that these steps include ‘technical and organisational measures’. Part 11 of Schedule 1 expands the declarations which the Commissioner can make where an investigation has found a complaint has been substantiated (section 52). Declarations could include requiring persons or entities to take any reasonable act or course of conduct to ‘prevent or reduce any reasonably foreseeable loss or damage that is likely to be suffered’. Part 12 amends the Commissioner's annual reporting requirements to include further details regarding number of complaints, complaints not investigated and the grounds for decisions. Part 13 expands the Commissioner’s grounds to not to investigate a complaint to include where it ‘has been’ dealt with by a recognised external dispute resolution scheme.

Defamation

Yesterday's 2nd Reading Speech for the Defamation Amendment Bill 2023 (NSW) seeks to give effect to the Stage 2 reforms program for Australia's uniform defamation laws. 

It states 

 In summary, there are six key reforms: one, a conditional exemption from defamation liability for conduit, caching and storage services, and for search engines in relation to organic search results; two, updates to the mandatory requirements for an offer to make amends for online publications; three, a requirement for courts to consider balancing factors when making preliminary discovery orders against digital intermediaries; four, a new innocent dissemination defence for digital intermediaries, subject to a simple complaints process; five, a specific power for courts to make non-party orders against digital intermediaries to prevent access to defamatory matter online; and six, expanded electronic means by which notices can be served. 

I now turn to the detail of the proposed digital intermediary amendments. Schedule 1 [1] to the bill adds new defined terms to the existing section 4 definitions of the Defamation Act 2005. The new defined terms are fundamental to the operation of the digital intermediary amendments in the bill. I will explain some of the new defined terms later as I outline the substantive amendment provisions to which they relate. However, some of terms apply broadly across the amendment provisions so I will cover those now, starting with the term ''digital intermediary". First, I note that a lot of policy thinking, consultation and refinement sits behind this definition. Digital intermediary, in the context of the publication of digital matter, is defined to mean: … a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published. 

A note makes clear that there may be more than one digital intermediary in relation to the publication of the same digital matter. ''Online service" essentially means any service provided to a person to enable them to use the internet. This includes using the internet to do a range of things, such as sending or receiving content, searching for content, sharing content and interacting with other people. Some examples of an online service are included in a note to the definition to emphasise the range of services covered by the definition. An ''online service" specifically includes a forum created or administered by a person using a facility provided by an internet‑based social media platform that enables users to share content or interact with other users about a topic. 

The term ''digital intermediary" is intended to apply broadly. It was developed to cover the full spectrum of functions considered by the stage two review of the Model Defamation Provisions. It deliberately includes forum administrators. It is also intended to cover any new or emerging functions, given the pace at which technology in this area evolves. Another important aspect of the definition of 'digital intermediary is the exclusions. The definition specifically excludes the author, originator or poster of the matter because they are not intermediaries. "Poster" is defined to mean a person who uses the online service to communicate the matter to one or more other persons. The terms ''author" and ''originator" are not defined. Both terms are used in the existing innocent dissemination offence at section 32. 

For the purpose of the digital intermediary amendments, firstly, ''author" is intended to cover circumstances such as when a person who writes a defamatory statement is not the person who posts it. Secondly, ''originator" is intended to include anyone who plays a role in creating the content. Often they may also be the poster, but in some circumstances they may not—for example, where a person edits and endorses a statement that is drafted and posted by another person. Finally, the term ''digital matter" is defined to mean "matter published in electronic form by means of an online service". This is not intended to affect or limit the meaning of ''matter" in the Act. It is only intended to cover a subset of matter, being digital matter. ... 

I now turn to parts of the bill relating to exemptions from liability for digital intermediaries. Schedule 1 [3] to the bill inserts new division 2A into the Defamation Act. This includes two conditional statutory exemptions from defamation liability that apply to narrow classes of digital intermediaries. In the development of defamation law it has been argued that certain traditional intermediaries, such as telephone lines and postal services, are so passive in the publication process that they are not publishers; indeed, they are mere conduits. The stage two review considered if there are equal passive digital intermediary functions that should have statutory protection from defamation liability for third‑party content. The stage two review concluded that there is a very small group of digital intermediary functions that meet this criteria. 

As a result, schedule 1 [3] establishes a conditional exemption from defamation liability for three specific digital intermediary functions. Firstly, a caching service that stores content temporarily to make onward transmission more efficient will be exempted. For example, this includes files commonly downloaded from a website temporarily and automatically stored to speed up the download time. Secondly, a conduit service whose principal function is to enable users to connect with the internet, send data or receive data will be exempted. This includes internet service providers and email service providers. Thirdly, a storage service whose principal function is to enable users to store content remotely will be exempted. An example is a cloud service provider that enables users to store photos for later retrieval. Proposed new section 10B defines "caching service", "conduit service" and "storage service" and includes examples to illustrate what each definition is intended to cover. 

The policy rationale for this narrow exemption from liability is to recognise the passive role that these digital intermediaries play in the publication process. This does not substantially change the law. These digital intermediaries are generally not the subject of defamation claims and are unlikely to be considered publishers under the Commonwealth test. The intention is to provide clarity and certainty. The exemption would apply irrespective of whether the digital intermediary knew, or ought reasonably to have known, the digital matter was defamatory. Given the breadth of this protection, the exemption only applies very narrowly, and a set of conditions are included to ensure that if an intermediary plays a more active role in a publication—for example, by editing the content—that would make the intermediary ineligible. 

The conditions that apply to the exemption are listed at proposed new section 10C (1) (c). Even where a digital intermediary meets the definition of caching, conduit or storage service, if it played a more active role in relation to the digital matter in question, such as editing or promoting, the exemption would not apply. The stage two review of the Model Defamation Provisions also included careful considerations of the functions performed by search engine providers. Ultimately, it was concluded that a conditional exemption from defamation liability from search engine providers in relation to organic search results is appropriate. 

The policy rationale behind this conclusion is that, firstly, in performing the standard functions, search engine providers have no interest in the content. They simply use an automated process to provide users with access to third‑party content. Secondly, search engine providers are unable to remove content from the internet and can only block access to identified URLs from their search engine. Thirdly, unlike, for example, a social media platform, a search engine provider does not have any relationship with the original author. Fourthly, search engines provide significant public benefit and operate on a massive scale. The exemption for search engine providers applies regardless of whether the search engine provider knew, or ought reasonably to have known, the digital matter was defamatory. 

Given the strength of the protection, the exemption has been designed to apply very narrowly. Firstly, proposed new section 10D (1) provides that the exemption only applies to the publication of digital matter comprised of search results or the publication of digital matter to which the search results provide a hyperlink. ''Search result" is defined in proposed new section 10B. It means a result generated by a search engine that is limited to identifying a webpage on which content is located by reference to one or more of: the title of the webpage, a hyperlink to the webpage, or an extract or an image from the webpage. 

Secondly, proposed new section 10D (1) confines the exemption to publications where the search engine provider's role was limited to providing an automated process for the user to generate the results. An example of a publication that would not be covered by the exemption due to these limitations is an autocomplete suggestion for search terms. Another example is an answer composed by artificial intelligence, such as Bing Chat, in response to a question input by a user. Thirdly, proposed new section 10D (2) provides that sponsored search results are not covered by the exemption. 

The new court power to make orders against non-party digital intermediaries provides for a safeguard where defamatory matter may have been published, even where digital intermediaries qualify for a statutory exemption from liability. The bill will insert new section 39A into the Defamation Act, providing the court with the power to order a digital intermediary that is not a party to proceedings to remove or disable access to defamatory matter online in certain circumstances. The new court power would apply to all digital intermediaries, including those that qualify for the statutory exemptions, meaning that even if a digital intermediary is exempt from liability it will still be possible for orders to be made that the digital intermediary remove access to defamatory material in some circumstances. I will go into further detail about this amendment as I speak about remedies introduced by the bill. 

The bill provides an early determination process for the digital intermediary exemptions. This is at proposed new section 10E, which provides that the judicial officer in defamation proceedings is to determine whether an exemption is established as soon as practicable before the trial starts, unless the judicial officer is satisfied that there are good reasons to postpone the determination to a later state of the proceedings. New section 10E (2) (a) provides a non-exhaustive list of matters that are relevant to this decision. The purpose of the early determination process is to support the policy intent behind the statutory exemptions—namely, to recognise that the role of these digital intermediaries in the publication process is such that they should not be subject to defamation claims. Ideally, the early determination process will mean that time and costs are not expended unnecessarily. The savings and transitional provisions in relation to the statutory exemptions are the same as those for the new innocent dissemination defence. I will briefly outline the intended operation when I speak about the new defence. 

One of the objects of the Defamation Act 2005 is to promote speedy and non-litigious methods of dispute resolution. Part 3 of the Act establishes a procedure to enable parties to settle disputes without the need for expensive litigation by encouraging a publisher to make a reasonable offer to make amends to the aggrieved person. If the aggrieved person does not accept an offer that was reasonable in all the circumstances, the publisher may rely on their offer to make amends as a defence in any subsequent defamation action against them, in accordance with the terms of the Act. 

Section 15 of the Act sets out a number of elements a reasonable offer to make amends must and may include. I will refer to these requirements as the mandatory and discretionary elements of an offer to make amends. The bill includes two proposed amendments to section 15 of the Act. The first is a minor amendment to one of the discretionary elements of an offer to make amends. Section 15 (1A) (b) currently provides that, if the defamatory matter in question has been "published on a website or any other electronically accessible location", an offer to make amends may include "an offer to remove the matter from the website or location". That was added as part of the stage one amendments to accommodate online publications. 

The bill amendments section 15 (1A) (b) to provide that, if the matter is digital matter, an offer to make amends may include an "offer to take access prevention steps in relation to the matter". This amendment broadens the provision by allowing a publisher to offer to remove, block, disable or otherwise prevent access to a matter, and is consistent with wording used in the bill. A more significant amendment is proposed in relation to two of the mandatory elements of an offer to make amends. 

These existing mandatory elements are, firstly, section 15 (1) (d), which provides, relevantly, that an offer to make amends must include "an offer to publish, or join in publishing, a reasonable correction of, or clarification of or additional information about, the matter in question"; and, secondly, section 15 (1) (e), which provides that an offer to make amends must include, "if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge, an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the complainant". 

These mandatory elements were not originally designed with digital intermediaries for online publications in mind. They make sense for traditional publications, such hard copy newspapers, that do not remain readily accessible at the click of a button. If the publisher of a newspaper receives a concerns notice about a defamatory statement in a particular edition, they could then offer to publish a correction in a subsequent edition, presumably reaching largely the same audience. However, a digital intermediary may not be able to do these things. For example, a search engine would not be able to publish a reasonable correction for a search result. Also, when defamatory matter is published online, it often stays there. Added to this concern is the ease and speed at which it can be further disseminated to a wider audience. It is understandable then that, for many plaintiffs, their central concern is simply to have the matter removed. 

The bill inserts new section 15 (1B), which updates the operation of these two mandatory elements for digital matter. It provides that, if the matter in question is digital matter, an offer to take access prevention steps may be made instead of or in addition to either or both of the offers mentioned in paragraphs 15 (1) (d) and (e). The purpose of this amendment is to ensure that there is an appropriate avenue for offering to make amends in circumstances where it is not possible or meaningful for online publishers to publish a correction or clarification. It also reflects the kind of remedy that many plaintiffs are seeking in relation to online publications. An important safeguard is that, under the existing section 18, if the defendant seeks to rely on the offer to make amends defence, the court must be satisfied that, in all the circumstances, the offer was reasonable. The offer to make amends changes will apply to offers made after the commencement of the amendments. That is even where the matter is published before the commencement. 

Many originators who post defamatory material online do so using a pseudonym. In order to commence defamation proceedings, the plaintiff must identify and locate the originator. In some recent cases, particularly in the Federal Court, plaintiffs have obtained preliminary discovery orders requiring a digital intermediary to disclose information concerning the originator's identity. Australian courts already can and do consider proportionality, privacy and the risk of abuse of process in exercising the discretion to make preliminary discovery orders. However, there may still be a risk that such orders are abused or have a chilling effect. 

Proposed new section 23A provides that, before making an order for preliminary discovery, the court must take into account the objects of the Act and any privacy, safety or other public interest considerations. This does not provide a new avenue to seek preliminary discovery; it simply applies this requirement over the general rules. While courts already have the discretion to consider these factors, there is value in making consideration of these factors mandatory. This will promote consistency across jurisdictions. It is also in the interests of protecting domestic violence victims and other vulnerable members of society. For example, a person who has published matter online using a pseudonym may fear for their safety. A bad actor could seek a preliminary discovery order on the basis that they want to commence defamation proceedings against the person when the real motive is to find out the person's current location or other contact details. 

Proposed new section 23A would ensure the court takes into account privacy and safety considerations before making a preliminary discovery order requiring a digital intermediary to disclose any identifying information it holds about the person. The savings and transitional provisions for proposed new section 23A are the same as for the power of the court to make non-party orders. I will briefly outline their intended operation when I speak about the power to make non-party orders in a moment.

Blood and Procedure

Another pseudolaw claim, with the Court in National Australia Bank Limited v Mellander [2023] NSWSC 1171 noting 

 The defendant is the registered proprietor of the property at ... Street, Wentworthville NSW 2145 (the property). The defendant borrowed money from Citibank Pty Limited (Citibank). The loan was secured by a mortgage over the property. Subsequently, Citibank, on the plaintiff’s case, transferred its rights with respect to the loan and the mortgage to the plaintiff. The defendant defaulted on the loan, leading the plaintiff to take action in this Court by way of statement of claim. The defendant says he sent a response to the Court. Nothing was actually filed in the proceedings. As a result of the apparent absence of any response to the plaintiff's claim, the plaintiff obtained default judgment and then subsequently obtained a writ of possession with respect to the property. On 5 September 2023, some 48 hours before he was to be evicted, the defendant filed a notice of motion seeking a stay of the writ of possession. That motion is the subject of this judgment. ... 

The defendant contends that his evidence establishes the default judgment and writ of possession were not properly obtained and, further, that he has a good defence to the claim. 

The plaintiff relied on: (1) the notice of motion seeking default judgment, together with the supporting affidavit of Dean Adams of 6 June 2023 (Exhibit 1); (2) the notice of motion seeking the writ of possession, together with the supporting affidavit of Mr Adams of 18 July 2023 (Exhibit 2); and (3) an affidavit on Sera Erikozu of 19 September 2023 (Exhibit 3). 

The plaintiff also provided written submissions to the Court. On the plaintiff’s case, the above evidence establishes the default judgment and writ of possession were regularly obtained. The plaintiff further submits that the defendant’s contentions are baseless. 

By statement of claim filed 6 March 2023, the plaintiff sought possession of the property, leave to issue a writ for possession, judgment in the amount owing under the loan (approximately $254,000), together with the plaintiff's fees and charges in accordance with the loan and mortgage and the costs of the proceedings. 

An affidavit of a licensed process server of 13 March 2023, annexed to the affidavit in support of the motion for default judgment, establishes that the statement of claim was served on the defendant on 9 March 2023. The affidavit states that three copies of the statement of claim, the notice to occupier, and the possession of land coversheet were served on the defendant by placing them in a sealed envelope and affixing the envelope to the fence at the property. It appears service was affected in this way as, according to the affidavit, the property was surrounded by a fence with a sign indicating “LEGAL NOTICE, NO TRESPASSING - ADMITTANCE BY INVITATION ONLY”. The affidavit annexed a copy of the notice to occupier. 

A further affidavit of service, prepared by a licensed commercial agent on 27 March 2023, was annexed to the affidavit in support of the motion for default judgment. This related to a further service of the statement of claim and possession of land coversheet on 21 March 2023. While the documents did not include a notice to occupier, I am satisfied this document had been properly served on 9 March 2023: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 6.9(2). The commercial agent deposed that he attended the property and described the only access to the property to be a “chainmesh gate which was padlocked closed”. He deposed that there were “signs attached to the gate advising that ‘all mail and all correspondence’ would not be accepted, and that uninvited admittance to the property by police, government, process servers etc would be an act of trespass”. The deponent said he waited at the property and, at approximately the 5:30 pm, he had a conversation with a man he believed to be the defendant. He described the man as “aged in his sixties”. He said the man arrived at the property on a bicycle and opened the padlock on the gate. When asked, the person denied that he was the defendant. The deponent said that the man turned away when he appeared to observe the documents in the deponent's hand. The deponent said “I think you are Peter Mellander . I have some legal documents to deliver to you”. The deponent said the person responded, “you have no liability” and further said “you have no liability under the fourth law” and walked away. The deponent states that he then said “as you will not accept the documents, I am making you aware that I will leave them here for you. Take this as notice that you have been served”. The deponent said that he then rolled-up the documents and placed them in the chain mesh gate. The deponent stated that he took a photograph of the person he spoke to. He said he showed that photograph to a neighbour at ... Street who informed him that the person in the photograph was known to him as “Peter Mellander ”. Photographs of the fence, signage, and the person spoken to were annexed to the affidavit.

The Court was satisfied that Mellander was served with the statement of claim, the notice to occupier, and the possession of land coversheet, noting "the defendant does not suggest the proceedings were not brought to his attention". 

 No response to the statement of claim reached the Court file or, apparently, the plaintiff. On 8 June 2023, the plaintiff filed a notice of motion seeking default judgment. Filed in support of that motion was the affidavit of Mr Adams of 6 June 2023. That affidavit established the transfer of the mortgage from Citibank to the plaintiff, service of the statement of claim and related documents, together with the outstanding debt. There was no requirement to serve the application for default judgment on the defendant: UCPR, r 16.3(1A). The defendant obtained default judgment and possession orders in respect of the property on 15 June 2023. 

By notice of motion filed on 20 July 2023, the plaintiff sought a writ of possession for the property. There was no obligation to serve the application on the defendant: UCPR, r 39.2(2)(b). A writ of possession was obtained on 1 August 2023. 

It was only when faced with eviction from the property that the defendant took any steps in relation to the proceedings, or at least, any step recognised by the Court. On 5 September 2023, the defendant filed a notice of motion by which he sought an order that “the Court provide an immediate stay of proceedings pending full and detailed judicial review”. 

The matter came before Walton J, as Duty Judge, on 13 September 2023. On that date, the defendant's motion was adjourned to 20 September 2023, when it came before me as Duty Judge, to allow the defendant an opportunity to consider the plaintiff’s evidence and put evidence before the Court to provide a basis for the order sought. On 13 September 2013, in accordance with an order made by Walton J, the plaintiff provided the defendant with copies of the motions seeking default judgment and the writ of possession, together with the affidavits in support, the two affidavits of service with respect to the statement of claim referred to above, and the Court’s notice of orders made on 15 June 2023 entering default judgment for the plaintiff. 

The plaintiff served the defendant at court with the affidavit of Ms Erikozou (Exhibit 3) and its written submissions. That material had been filed the previous day in accordance with the orders of Walton J, however, in the absence of any means of electronic service, the defendant was not able to be served until he appeared at the hearing. I adjourned the Court for a period I regarded as sufficient to allow the defendant to read that material. 

The defendant's claim is that there are defects in both the process by which judgment was obtained against him and the substance of the plaintiff's claim. Any stay, as sought by the defendant, is contingent on him having a basis on which to set aside the default judgment. Although no motion to set aside the default judgment has been filed, I will proceed on the basis that this is what the defendant seeks to do. ... 

The process by which default judgment and the writ were obtained 

The steps taken by the plaintiff 

The defendant’s affidavit of 18 September 2023 claims that the default judgment and the subsequent writ were properly obtained. He said that the affidavit of service with respect to the statement of claim was only a photocopy, was not certified as a true copy, had not been “signed by the issuing officer of the Court giving full assurance of liability”, was a “false and fraudulent document” and “has not reached full commercial liability”. Consequently, it was submitted that, among other things, it was void, a constructive fraud, designed to pervert the natural course of justice, and could not be relied upon. The same submission was made in relation to the motion seeking default judgment and the writ of possession. 

There is no obligation on a party to produce original documents. Section 48 of the Evidence Act 1995 (NSW) allows proof of documents by the tender of a document that purports to be a copy of the document and purports to have been produced by a device that reproduces the contents of documents. This allows for the acceptance of a document, which appears to a photocopy of a document. Further, I note the proceedings are interlocutory and s 75 of the Evidence Act provides that the hearsay rule does not apply, provided that the party adducing hearsay evidence adduces evidence of its source. Consequently, and, in the defendant’s favour, on the assumption that it was necessary for the plaintiff to do so, I do not accept the defendant’s submission that the plaintiff has not established the default judgment and writ of possession were properly obtained. 

The defendant's response to the statement of claim 

There is one complication in relation to the process by which the default judgment and writ of possession were obtained. The defendant claims that he responded to the statement of claim. He says that he mailed, to the Court, a document which forms the bulk of Exhibit 3. That document is titled “Affidavit of Rebuttal” and is date stamped 24 March 2023. It is addressed to the “Supreme Court of New South Wales, Chief Justice” with the Court's address. On the first page, the document sets out the following:

“In support of: NATIONAL AUSTRALIA BANK LIMITED A.B.N 12 004 044 937 and the SUPREME COURT OF NSW A.B.N. 77 057 165 500 does not have competent jurisdiction over I, The Aggrieved and did deny my lawful rights for peter-james bonded by the blood of the house of mellander Applicant: peter-james bonded by the blood of the house of mellander Defendant 1: The CHIEF EXECUTIVE OFFICER of NATIONAL AUSTRALIA BANK LIMITED Defendant 2: NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 Defendant 3: The CHIEF JUSTICE of the SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 4: The SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 5: The```` STATE of NSW Defendant 6: Attorney-General’s Department A.B.N. 92 661 124 430 Defendant 7: Federal Court of Australia A.B.N. 49 110 847 339 Defendant 8: CITIBANK Pty LIMITED A.C.N. 004 325 080 

General form of affidavit. Affiant: peter-james bonded by the blood of the house of mellander . The CHIEF JUSTICE, I, peter-james bonded by the blood of the house of mellander care of ... Street, Arndell Park, N.S.W. [2148] come with clean hands in equity seeking immediate lawful remedy make asseveration and say as follows: [signed] Deponent [signed] Justice of the Peace Affidavit Registration Number: U.P.U./Australia Post Registered Post Article 341883001778359 Page 1 of 53”

It is not until the second page of the document that reference is made to these proceedings. The document states:

“I refer to 'NOTICE TO OCCUPIER'; NATIONAL AUSTRALIA BANK LIMITED A.B.N.12 004 044 937 case number 2023/00074608 and 'STATEMENT OF CLAIM; NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 v Peter James Mellander ' date March 6, 2023 served on I, The Aggrieved, March 10, 2023 and March 21, 2023.” The 'STATEMENT OF CLAIM' Title of Proceedings lists the defendant as ‘Peter James Mellander ’. 

The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did commit fraud. The Addressee name is a corporate government created name of a corporate dead entity legal fiction construct from the unlawful Birth Certificate by trading company corporation known as NSW REGISTRY OF BIRTHS DEATHS AND MARRIAGES. 

The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did attempt to make trick and deceive and induce and coerce the living breathing flesh and blood man of God being the intended recipient to consent to the fraud. 

The use of the legal name against I, The Aggrieved is offensive and defamatory and embarrassing material. 

There is no contract or obligation by the I, The Aggrieved being the intended recipient to pay or perform to trading company corporation known as SUPREME COURT OF NSW A.B.N. 77 057 165 500. 

The 'STATEMENT OF CLAIM' Attachment Details confirms the Court intends to sit, preside and determine in accordance with UCPR being foreign imposed codification not correctly searching for it's head of power under the Commonwealth Constitution.”

SCAG

Items in the latest Standing Council of Attorneys-General (SCAG) Communique ...

NATIONAL APPROACH TO REGULATING THE USE OF BIOMETRICS AND RELATED TECHNOLOGIES, INCLUDING FACIAL RECOGNITION TECHNOLOGY 

Participants discussed the risks and benefits associated with the development and use of facial recognition technology and biometrics. They agreed the risks associated with increased use of these technologies warrant a coordinated national response and that the adequacy of regulation should be considered to ensure the risks are appropriately addressed. As the regulation of facial recognition technology and biometrics is currently being considered in the context of broader privacy policy reform, the Australian Government Digital ID system, and the National Strategy for Identity Resilience, participants agreed that the Australian Government would return to the Standing Council of Attorneys-General by the end of 2023 to provide an update on the progress of these measures, and to discuss future regulatory approaches. 

MODEL DEFAMATION REFORM 

On 22 September 2023, the Standing Council of Attorneys-General approved by majority the final amendments for Part A and Part B of the Stage 2 Review of the Model Defamation Provisions (MDPs), subject to some jurisdictions’ Cabinet processes where necessary. 

The final Part A reforms, led by New South Wales, are intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries. In addition to the Part A amendments to the MDPs being approved, the Australian Government will prepare an exemption to state and territory defamation laws from section 235(1) of the Online Safety Act 2021 (Cth). 

The final Part B reforms, led by Victoria, extend absolute privilege to matter published to police. The guiding principles attached to this communique will be used by jurisdictions to determine whether to extend absolute privilege to matter published to a complaints-handling body for the purposes of the Part B reforms. 

The Part A and Part B amendments to the MDPs will be published on the Australasian Parliamentary Counsel’s Committee website. Participants agreed that jurisdictions in the majority will use best endeavours to enact the Part A and the Part B amendments to the MDPs for commencement on 1 July 2024. 

Participants also agreed that there should be a review of the Stage 1 and Stage 2 amendments to the MDPs that begins no later than 3 years after the commencement of the Stage 2 amendments in all implementing states and territories. 

South Australia supports the Part B reforms and aspects of the Part A reforms and will give further consideration to the Part A reforms separately from the Standing Council of Attorneys-General and other jurisdictions, as to how they might best apply to South Australian legislation. 

ACCESS TO DIGITAL RECORDS SCHEME AFTER DEATH OR INCAPACITY 

Participants agreed to discontinue the project to develop a national access scheme for digital records after death or incapacity. In working towards a national approach it has become clear that complex issues arise from the interaction with other legal frameworks including in relation to information privacy and succession. The wide variety of digital record holders also makes it very challenging to develop a uniform scheme that is appropriate for all. It was agreed that instead, there is merit in allowing for digital record holders to respond to these issues in a way that is tailored to their services – without the need for uniform legislation. Participants acknowledged and extended their thanks to stakeholders for their important contributions to this work. 

NATIONAL COORDINATED LEGISLATIVE PROHIBITIONS ON ‘SPIT HOODS’ 

Participants:

(a) noted that Non-Government Organisations (NGOs) continue to express concerns about the ongoing use of spit hoods in detention settings and to argue that there are adequate alternative forms of protection for detention workers against disease transmission or injury from detainee spitting or biting, which avoid the risks to detainees posed by spit hood use. 

(b) noted that the Commonwealth and several states and territories have moved to prohibit remaining uses of spit hoods in their jurisdiction, including after reviews of the efficacy of spit hoods in protecting detention workers and sufficiency of alternative forms of worker protection, or recently commenced such reviews; 

(c) agreed to commit to review any residual authorities to use spit hoods in their jurisdiction; and 

(d) noted that the Standing Council of Attorneys-General has now concluded its exhaustive consideration of the proposals for ceasing all remaining uses of spit hoods in detention settings. 

ENDURING POWERS OF ATTORNEY LAW REFORM 

Noting the importance of elder abuse law reform, participants agreed to seek public feedback on options for achieving greater consistency in enduring powers of attorney (EPOA) laws. The consultation paper Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney was endorsed for release, and it was agreed that further advice on this work will be provided to Attorneys-General in 2024, based on consultation feedback. 

Participants noted the feasibility of establishing a national register of EPOAs has been examined in detail, informed by public consultation on potential approaches and an independent cost-benefit analysis of several alternative register models. 

It was agreed that the current significant differences in EPOA laws and practices between jurisdictions (including different EPOA forms, requirements for validity and registration and revocation arrangements) are not conducive to establishing an effective register which is suited to users’ needs, and that there are inherent limitations associated with a national register’s ability to reduce instances of financial elder abuse. It was further agreed that establishing a national register would risk introducing complexity, unnecessary costs and practical barriers to people making and using EPOAs. 

Given these limitations, participants agreed that achieving greater consistency in State and Territory EPOA laws, and greater emphasis on education and awareness raising aimed at reducing elder abuse occurring through EPOAs, should be the focus of the Standing Council of Attorneys-General EPOA law reform work. 

Participants noted work is continuing on the development of a successor National Plan to the National Plan to Respond to the Abuse of Older Australians 2019 – 2023.

Belief, Defamation and the Devil

Is accusing someone of being a witch defamatory? In Nyasulu v Naikelekele [2022] NSWDC 507 the plaintiffs brought proceedings for twelve social media posts on their Church website by a former Church member saying they are devils running a satanic cult, with the court considering whether the “consensus” of modern public opinion means that the imputations pleaded were incapable of defamatory meaning and serious harm. 

The judgment states 

 The plaintiffs are the founders and leaders of Streams International (“Streams”), a prophetic ministry which operates in New South Wales, Queensland and South Australia. The defendant is a former member of Streams. 

Over a two-day period (8 - 9 September 2021) the defendant published a series of twelve posts on the Ministry Facebook page in similar terms. Each of them is pleaded to convey imputations of use of satanic or demonic power by each plaintiff for the purpose of stealing away the defendant’s daughter. The similarity in content and short time period for publication for these posts are important factors in the determination of the issues before me. ... 

(c) The defendant also submits that there is a “consensus requirement” that a statement can only be defamatory if it imputes some conduct or quality that would seriously harm the claimant’s reputation in the eyes of “right-thinking members of society generally” (Sube at [4]), citing Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994) and Loukas v Young [1968] 3 NSWR 549 at 50 (“witch” not defamatory); see also Tabbaa v DailyMail.com Australia Pty Ltd (ACN 166 912 465) [2015] NSWDC 278 (“evil”)). In the twenty-first century, Ms Hart argues, how can it be defamatory to say of someone that they are a “demonic prophet of Satan” or even the devil himself? ... 

The relevant principles of law Section 3(d) of the Act, under the heading “Objects of Act”, states that the fourth of these objects is “to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter”. The emphasis on speedy and non-litigious means of resolution in s 3(d) is central to the functioning of the legislation in general and the concerns notice procedure in particular. Section 10A of the Act identifies “serious harm” as an element of the cause of action for defamation. The publication must be established to have caused, or to be likely to cause, serious harm. ... 

In the Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25), the dangers of a proliferation of “neighbourly disputes” and “backyard defamation” were noted. The purpose of mandatory concerns notices is to promote swift resolution of such matters, without recourse to litigation, by use of the offer of amends process where appropriate. The purpose of the ability to respond by offer of amends is to achieve a settlement of the whole of the proceedings, and to do so informally and outside the court system. Previously, the undesirable situation had been that a plaintiff could simply serve a statement of claim and treat it as a concerns notice (Mohareb v Booth [2020] NSWCA 49; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283; s 12A(2) was specifically enacted to overcome the effect of these appellate decisions). ... 

careful analysis of the whole of the concerns notice demonstrates that not only are there such particulars, but there are nearly eight pages of them, as the following summary demonstrates: (a) The general tenor of the first two pages is that the defendants’ series of posts individually and collectively caused personal distress and humiliation to the plaintiffs through their ministry, as they have been deluged with messages by the thousands of readers who saw them. The defendant made “extremely serious” allegations damaging to the plaintiffs’ reputations in the eyes of these persons. (b) This includes four paragraphs of details (headed “Relevant Cultural and Reputational Matters”) and a description (on pages 1 - 2) of the plaintiffs’ work in the Ministry, not only in Australia but at other locations, and how that work has been affected. (c) There is then a heading: “The involvement of You and Your daughter in the ministry” setting out how the defendant left Streams while her daughter chose to remain. (d) The defendant is next told about the responses of the members of Streams to the publications (submissions, paragraphs 21 - 24). This section describes some of the responses of the readers of the matters and the impact this has had on the plaintiffs’ reputation. (e) The next heading, “The defamatory publications”, identifies each of the publications made between 8 and 9 September made by the defendant under a pseudonym. The texts of each of the publications and the publishee are both set out. (f) This is followed by the defendant’s list of the imputations of concern, on page 6 of the concerns notice. This list of 22 imputations sets out that the matters complained of “carry numerous defamatory imputations, including...”. (g) The next heading is “Damage caused and ongoing”. This sets out precise figures for the extent of publication. The assertion is made that the Facebook page (erroneously described on page 8 as “this letter”) has reached 28,731 people across the world, with 10,024 post engagements, 5,493 link clicks and 4,512 persons watching an embedded video for more than 3 seconds. This is followed by “examples” of public exchanges between the defendant and the persons to whom she addressed her posts. It concludes by noting that other content has been posted on “other social media locations.” This is clearly an ongoing issue; Mr Sibtain SC referred in his oral submissions to publications to over 80,000 people and to the need for further particularisation in the future. (h) The letter concludes by setting out the orders that will be sought, including a figure for general damages and a claim for exemplary damages (which I assume is an error, in that there should be a separately assessed figure for aggravated damages pursuant to s 35(2B) of the Act. Exemplary damages are not available: s 37 of the Act.) (i) The letter then concludes with an invitation to make amends for the hurt and damage to reputation suffered.... 

The “consensus argument” that in the 21st century, these publications are not even capable of defamatory meaning 

Ms Hart, relying on the “consensus argument” in Sube as well as on Falkenberg v Nationwide News Pty Ltd, submits that in modern society, particularly taking into account the manner in which social media posts are read in a somewhat cynical fashion, the matters could not give rise even to defamatory meaning, let alone serious harm, as comparison to the devil would not be taken seriously; it was evident from the matters complained of that nobody took the defendant literally or believed what she said. 

There are a number of judgments where courts have held that allegations of witchcraft (WIC Radio v Simpson [2008] 2 SCR 420 at [97], citing Loukas v Young [1968] 3 NSWR 549), being the devil (Falkenberg v Nationwide News Pty Ltd) and even sleeping with the devil (Peschmann v Quayle (WD, Pa., 13 August 2019) are rarely likely to be defamatory in “a modern developed society”, because such an imputation “would not be believed and therefore would not harm the plaintiff’s reputation” (WIC Radio v Simpson at [97]). Mr Sibtain submitted in response that it was “not trivial” to say that the plaintiffs were the devil incarnate and running a satanic cult. This submission may be disposed of in relatively brief terms. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, the plaintiff, a gynaecologist, brought proceedings for defamation for being called an abortionist. The action was struck out at first instance on the basis that the word did not have a particular defamatory meaning. On appeal (referring, inter alia, to imputations of being a communist), Glass JA noted the differing views in other jurisdictions:

“There is no need to document the existence in the community of a deep factional divide on the issue of abortion. The pro-abortion lobby approves the existing grounds for lawful termination of pregnancies and seeks to have them extended. The anti-abortion lobby contends that all abortion is morally wrong and that no abortion should be lawful. So the description of the plaintiff as a lawful abortionist will excite both approbation and disapprobation in different sections of the community. How does the law of defamation accommodate these discrepant social attitudes? There is a body of English authority which suggests that the standard of opinion is that of “right thinking people generally”: Tolley v J S Fry & Sons Ltd [1931] UKHL 1; [1930] 1 KB 467, at 479; Sim v Stretch [1936] 2 All ER 1237, at 1240; 52 TLR 669, at 671. The corollary to this proposition was that an imputation of conduct which disparaged the plaintiff only in the eyes of a limited class was not defamatory; Byrne v Deane [1937] 1 KB 818; Myroft v Sleight (1921) 90 LJKB 883; Clay v Roberts (1863) 8 LT 397. In the United States, on the other hand, an imputation can be defamatory if it injures a man in the eyes of “a considerable and respectable class in the community” though it be only a minority, Peck v Tribune Co [1909] USSC 135; 214 US 185, at 190 (1909), in which Holmes J said “liability is not a question of a majority vote”.

Literature and Defamation

'Legal Fiction: Reading Lolita as a Sentencing Memorandum' by Christina Frohock in (2022) 86(1) Albany Law Review comments 

 The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

SCAG earlier this month stated 

 On 9 December 2022, the Standing Council of Attorneys-General approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions. This is subject to final agreement in the first half of 2023. Participants noted the significant work that has been undertaken by the interjurisdictional Defamation Law Working Party, led by NSW, since the exposure draft Part A Model Defamation Amendment Provisions were released in August 2022 for public consultation. A large stakeholder roundtable was held in September and 36 written submissions were received. Careful consideration has been given to the feedback received from a wide range of stakeholders and this has informed further refinements to the Part A amendments. The Part A reforms that have been agreed in principle for commencement from 1 January 2024 are a pragmatic approach that is intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries. 

The amendments include:

• Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results 

• A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B) 

• A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online 

• A requirement that courts consider balancing factors when making preliminary discovery orders

• Updates to the mandatory requirements for an offer to make amends for online publications

Participants agreed that Commonwealth officials will consider the desirability of an exemption from section 235(1) of the Online Safety Act 2021 for defamation law and report back to the Defamation Law Working Party in the first half of 2023. 

Participants noted an update on Part B of the Stage 2 Review, led by Victoria, which considers whether absolute privilege should be extended to cover reports of alleged unlawful conduct to police and other entities including statutory investigative bodies and professional disciplinary bodies. 

Participants noted that consultation on the Part B reforms was finalised in October 2022 and that stakeholder feedback is informing final policy recommendations and amendments to the Model Defamation Provisions. This will enable consideration and agreement of the final Part B amendments in 2023. 

Participants agreed in principle that there should be a review of the Stage 1 and Stage 2 amendments to the Model Defamation Provisions beginning no later than 3 years after the commencement of the Stage 2 amendments (for both Part A and B) in all states and territories.

Legal Writing

In Edwards v Nine Network Australia Pty Limited [2022] FCA 509 Wigney J states 

[1] A Current Affair is a television program which, as its name would tend to suggest, occasionally airs stories concerning current affairs. On 24 May 2021 and 1 June 2021, the program aired hard-hitting stories about a complicated triangular custody dispute involving a man, a woman and a dog. The woman, Ms Gina Edwards, is a person who is said to have some notoriety as a lawyer who has worked in the United States. The dog, a cavoodle named Oscar, apparently had some notoriety as one of those cute furry pets that annoyingly pops up uninvited on one’s social media feed – assuming one has one. The man, Mr Mark Gillespie, had no particular notoriety, other than perhaps as a result of his cameo performance in the stories in question. 

[2] The dispute between Ms Edwards and Mr Gillespie was about who was rightfully entitled to Oscar’s canine affections and affiliation. The stories broadcast on A Current Affair included dramatic footage of confrontations between Ms Edwards and Mr Gillespie in a dog park on Sydney’s lower north shore – all while Oscar gambolled nearby, apparently oblivious to the highly charged emotions of his putative masters. 

[3] Anyway, as events transpired, Ms Edwards did not take too kindly to the way she was portrayed in the stories broadcast on A Current Affair, or the related web-based articles which largely reproduced them. She sued the companies responsible for publishing the broadcasts and articles in question, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited (collectively Nine), as well as the reporter who appeared in and contributed to the production of the relevant stories, Steve Marshall. She alleged that the broadcasts and articles defamed her because they implied or imputed that: she was a thief who stole Oscar the cavoodle; she stole Oscar for her own financial benefit; she deliberately delayed a previous court case about Oscar; she exploited Oscar for her own financial benefit; she adopted delay tactics so as to prolong her unlawful possession of Oscar; and she failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie. Ms Edwards claimed that the broadcasts and articles, and their “grapevine effect”, had gravely injured her character and reputation and resulted in her suffering substantial hurt and embarrassment. 

[4] The proceeding is at a very early stage. Already, however, it has become mired in procedural squabbles between the parties. The rot first started when Nine and Mr Marshall failed to file their defence within the 28 days allowed in the Federal Court Rules 2011 (Cth): see r 16.32. Following some rather intemperate and fairly unhelpful correspondence between the respective solicitors, Nine and Mr Marshall sought an extension of time in which to file their defence. When that application first came before the Court, Nine and Mr Marshall appeared cap in hand, but sans any draft defence. The explanation given for the delay was also far from satisfactory or persuasive. It was little better than the proverbial dog having eaten their homework. 

[5] Ms Edwards opposed the application. Once bitten, twice shy, she decried. She suspected that Nine and Mr Marshall were sniffing around for some ex post facto justification for their broadcasts. She submitted that Nine and Mr Marshall be required to lay their cards on the table and produce a draft defence before being granted an indulgence by the Court. She also submitted, not without some justification, that Nine and Mr Marshall had failed to provide any, or any satisfactory, explanation for why they had not filed their defence within the permitted time. 

[6] Nine and Mr Marshall were directed in those circumstances to come back when they had completed their homework, at least in draft. ...

Defamation

The national Meeting of Attorneys-General has released model legislation and a Background Paper: Model Defamation Amendment Provisions 2022 (Consultation Draft). 

The paper states 

Australia has uniform defamation legislation, the Model Defamation Provisions (MDPs), enacted by each state and territory. Part A of the Stage 2 Review of the MDPs addresses the liability of internet intermediaries in defamation law for the publication of third-party content online. The premise of Part A is that due to the broad test for determining who is a publisher under the common law, an internet intermediary is anyone who participates in the facilitation of the publication other than the person who authors the content in the first place (the originator). 

The term ‘internet intermediaries’ is used to cover a broad range of functions such as internet service providers, content hosts, search engines and social media platforms. It also includes those who use online platforms to host forums that invite third-party comments. This was considered in the High Court decision in Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27. The High Court held, following the common law’s traditionally broad approach to the element of publication, that the media companies were the publishers of third-party comments on their Facebook pages responding to news stories they posted. 

The purpose of the Part A work is to reform the model laws to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries. 

While stakeholder views on Part A differ, there is general agreement on the need to clarify the law in this area. Many were of the view that any reform should focus the dispute between the complainant and the originator of the matter in question. A common concern was the potential chilling effect on free speech of defences that require internet intermediaries to remove content to avoid liability. A number of stakeholders submitted that it is not fair to hold an internet intermediary liable for third-party content of which they are unaware. 

At the same time, legal stakeholders emphasised that a complainant should not be left without a remedy, in particular that the matter in question should either be defended or removed from the internet. Otherwise, there is a real risk of failure to provide a remedy where the originator is unidentifiable or unwilling to respond. Many stakeholders emphasised that in the context of third- party content published online, the remedy most sought after by complainants is for the matter to be removed expeditiously, without the need for litigation. 

A range of reforms are proposed to address the Part A issues comprehensively 

For Part A, a range of potential reforms have been developed to respond comprehensively to the full spectrum of internet intermediary liability for third-party content. These recommendations are the basis of drafting instructions issued to the Parliamentary Counsel’s Committee to prepare the draft Part A MDAPs for consultation. 

Recommendations 1 & 2: Conditional, statutory exemption for a narrow group of internet intermediary functions 

In the development of defamation law, it has been argued that certain traditional intermediaries (e.g. telephone lines and postal services) are so passive in the facilitation of publication that they should not be considered publishers. They are ‘mere conduits’. 

Stakeholder views were sought on whether equivalent internet intermediary functions should have statutory protection from defamation liability for third-party content. A statutory exemption would apply irrespective of whether the intermediary is made aware of the defamatory content. A large number of stakeholders agreed that such an exemption should be based on the principle of passivity. Given the breadth of the protection, some stakeholders submitted that an exemption should be granted on a restrictive basis. 

Two, statutory, conditional exemptions are recommended: 

• Recommendation 1: A conditional, statutory exemption from defamation liability for mere conduits, caching and storage services 

• Recommendation 2: A conditional, statutory exemption from defamation liability for standard search engine functions 

Recommendation 1 would cover internet intermediary functions including Internet Service Providers (ISPs), cloud services and email. These internet intermediaries are not generally the subject of defamation claims and (in the case of ISPs in particular) are unlikely to be considered publishers under the common law test. While Recommendation 1 would not substantially change the law, it recognises that where internet intermediaries play an entirely passive role in the facilitation of a publication, they should not be liable. 

Recommendation 2 would apply only to narrowly defined ‘standard search engine functions’, subject to conditions. Recommendation 2 presents an important change to the law. Search engines have been the subject of defamation claims in Australia and the High Court has confirmed that a search engine may be a publisher of search results. However, the treatment of search engines in Australia diverges from other comparable jurisdictions. 

The rationale for Recommendation 2 is that in performing their standard functions, search engines have no interest in the content. The publication of the search results is prompted in the first instance by the user typing in a search query and the user is also the recipient. The search engines simply use an automated process to provide access to third-party content. The proposed exemption would not cover autocomplete functions provided by some search engines, or content that is paid advertising. 

Stakeholder submissions in favour of an exemption for search engine functions also emphasised that search engines are unable to remove content from the internet, they operate on a massive scale and have no relationship with the originator. Another consideration is the significant social and economic value of search engines. 

Recommendations 3A and 3B: Two alternative options for a new defence for internet intermediaries 

For the most part, stakeholder submissions supported the introduction of a new defence for internet intermediaries, although there were a range of views regarding the right approach. 

Two alternative models are considered the most viable: 

• Recommendation 3A: Model A – safe harbour defence for internet intermediaries, subject to a simple complaints notice process, or 

• Recommendation 3B: Model B – innocent dissemination defence for internet intermediaries, subject to a simple complaints notice process 

A common goal for both models is to clarify the law for the benefit of complainants, internet intermediaries and originators. Both models would provide for: • basic prescribed contents for the complaints notice to the internet intermediary • a specific period of time in which the internet intermediary is to act • an internet intermediary not being ineligible for the defence simply because it has a practice of monitoring for or taking down unlawful content (i.e. practising good behaviour) • the internet intermediary being denied the defence if it is actuated by malice 

The purpose of Recommendation 3A is to focus the dispute between the complainant and the originator. It provides a complete defence if the complainant already has sufficient information about the originator to issue a concerns notice or commence proceedings. 

If the complainant does not have this information, the internet intermediary can avail itself of the defence if, with the consent of the originator, it provides that information to the complainant. Otherwise the intermediary must prevent access to the content within 14 days. 

The purpose of Recommendation 3B is to recognise that internet intermediaries should not be liable for third-party defamatory content where they are merely a subordinate distributor and lack knowledge of the defamatory content. Once the internet intermediary has received a complaints notice, it must prevent access to the matter within 14 days in order to be able to rely on the defence. 

One key difference between Model A and Model B is that Model B does not provide an automatic defence (or safe harbour) where the complainant has sufficient information about the originator to issue a concerns notice or commence proceedings. 

Recommendation 4: Clarify interaction with the Cth Online Safety Act 2021 immunity 

Put simply, section 235(1) of the Commonwealth Online Safety Act 2021 provides that a law of a state or territory, or common law or equity has no effect if it:

• subjects an Australian hosting service provider or ISP to liability where they are not aware of the nature of the online content or 

• requires an Australian hosting service provider or ISP to monitor online content Stakeholders have consistently submitted that the interaction between the Online Safety Act 2021 immunity and defamation law is uncertain.

 Key reasons given for this are that it is not clear: • which internet intermediaries are covered • what constitutes ‘awareness’ of the online content that defeats the immunity 

Recommendation 4 is that the Commonwealth Government should give close consideration to whether an exemption from section 235(1) of the Online Safety Act 2021 for defamation law is desirable, in the interests of clarity of the law. 

Recommendations 5 and 6: Clarification and enhancement of court powers 

Courts in defamation proceedings (as in other civil proceedings) will generally only grant orders against defendants that are party to the proceedings. In some circumstances though, even if a complainant has obtained judgment against an originator, it may be difficult to enforce a remedy. For example, where the originator is unable to remove content (it may have ‘gone viral’) or simply refuses to do so. In these circumstances, despite not being party to the proceedings, internet intermediaries may be in a good position to assist. 

Recommendation 5 would empower courts to make orders against non-parties to prevent access to defamatory matter online. This would be in circumstances where the court grants interim or final judgment for the complainant in an action for defamation. 

There would also be a requirement to give notice to the non-party internet intermediary. This is to ensure that the internet intermediary has the opportunity to make submissions about whether the order should be made. 

Recommendation 6 relates to preliminary discovery orders issued by courts against internet intermediaries to provide information about the originator. Some stakeholders raised concerns about the low threshold for such orders. There may be privacy and safety concerns where the location information of a dissident or domestic violence victim may be disclosed. 

Australian courts can, and do, take into account considerations of proportionality, privacy and the risk of abuse of process in exercising the discretion to make preliminary discovery orders. However, there may still be a risk that such orders are abused or have a chilling effect. Recommendation 6 is that where court rules allow a complainant to seek a preliminary discovery order from an internet intermediary in order to obtain information about an originator for the purposes of commencing defamation proceedings, the court should consider: the objects of the MDPs; and any privacy, safety or public interest considerations which may arise should the order be made. This recommendation does not provide a new avenue to seek preliminary discovery, it simply applies this requirement over the general rules. 

Recommendation 7: Mandatory requirements for an offer to make amends to be updated for online publications 

Part 3 of the MDPs establishes a process for parties to settle disputes without the need for litigation, by requiring the complainant to notify the publisher of the defamatory matter, and allowing sufficient time for the publisher to make a reasonable ‘offer to make amends’. 

There are a number of mandatory requirements for what a reasonable offer to make amends must include. One of these is an offer to publish a reasonable correction or clarification of the matter in question. Stakeholders have pointed out that internet intermediaries may simply not be able to comply with these mandatory requirements. For example, a search engine would be unable to publish a correction regarding a publication. They also submitted that in the context of third-party content published online, the remedy most sought after by complainants is to have the matter removed. 

Recommendation 7 is to amend the mandatory requirements for the content of an offer to make amends to allow the publisher to prevent access to the matter in question. This would be instead of the mandatory requirement for an offer to publish a reasonable correction or clarification of the matter in question.