Standing Council of Attorneys-General, Stage 2 Review of the Model Defamation Provisions (MDPs)
Part A amendments to the MDPs
Part A of the Stage 2 Review of the MDPs concerns internet intermediary liability in defamation for the publication of third-party content. New South Wales leads the Part A work.
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 MDPs. This is subject to final agreement in the first half of 2023. View the .
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
Part A exposure draft amendments to the MDPs
On 12 August 2022, the Meeting of Attorneys-General (as it was then) agreed to release for public consultation the (PDF, 256.4 KB) and an accompanying (PDF, 749.6 KB). A (PDF, 229.7 KB) is also available for ease of reference – it is a short extract of the Background Paper.
The due date for submissions was Friday 9 September 2022.
Stage 2 Discussion Paper
On 31 March 2021, Attorneys-General agreed to release a discussion paper for the Stage 2 Review.
The (PDF, 2.9 MB) was the first step in the second stage of the review of the MDPs.
Attorneys-General sought written submissions in response to the Stage 2 Discussion Paper.
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Stage 1 Review of the MDPs
- Clarification of the operation of the cap on non-economic damages;
- Introduction of a new public interest defence modelled on section 4 of the UK Defamation Act 2013;
- Introduction of a serious harm threshold for defamation claims, to be determined by the judicial officer as soon as practicable before the trial;
- Introduction of a single publication rule which will enable the limitation period to run from the first publication of alleged defamatory material;
- A requirement that concerns notices must be served with sufficient time for an offer to make amends to be made before proceedings can be commenced;
- Introduction of a new defence for peer reviewed matters published in academic or scientific journals.
Background to the Model Defamation Provisions reforms
The were endorsed in 2005 and each state and territory enacted legislation to implement the provisions. While responsibility for defamation law falls to individual states and territories, a national approach to reform is essential.
Led by the NSW Department of Communities and Justice, the Defamation Working Party invited feedback on (PDF, 233.8 KB) (PDF, 233.8 KB) (PDF, 233.8 KB) (PDF, 233.8 KB). An (PDF, 444.1 KB) (PDF, 444.1 KB) (PDF, 444.1 KB) (PDF, 444.1 KB) was also prepared to assist review, which tracks the draft amendments to the existing Model Defamation Provisions.
The accompanying (PDF, 446.0 KB) (PDF, 446.0 KB) (PDF, 446.0 KB) (PDF, 446.0 KB) explained the policy rationale for the proposed amendments and confirmed the position of the Council of Attorneys-General on each question raised in the (PDF, 704.8 KB) (PDF, 704.8 KB) (PDF, 704.8 KB) (PDF, 704.8 KB).
