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AUSTRALIA: An Introduction to TMT: Media

Australia: TMT: Media 

Authors: Marlia Saunders, Partner, Thomson Geer; Justin Quill, Partner, Thomson Geer; and John-Paul Cashen, Partner, Thomson Geer

The past 12 months have seen an upheaval of the laws and regulations applying to the media and digital platforms in Australia.

On 1 July 2021, amendments to the Uniform Defamation Acts commenced in New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory. At the time of writing, the Bill has largely progressed through the Tasmanian Parliament, with Western Australia and the Northern Territory lagging behind.

The new provisions apply to publications occurring after commencement of the amendments, which means that there will be a period of transition for new litigation where the previous provisions will continue to apply to some causes of action and to publications which have occurred in jurisdictions where the amendments have not yet come into effect.

The key amendments to the Uniform Defamation Acts are:

1. Introduction of a “single publication rule”, which means that the limitation period for commencing litigation in respect of electronic publications will start from the time that they are first uploaded or electronically sent. Under the previous provisions, the limitation period was refreshed each time that an electronic publication was accessed and comprehended.

2. Introduction of a serious harm threshold as an element of the cause of action, whereby the plaintiff must prove that publication of the defamatory matter has caused, or is likely to cause, serious harm (for individuals) or serious financial loss (for excluded corporations). This issue is to be determined by a judicial officer as soon as practicable before the trial.

3. Introduction of a public interest defence where a defendant proves that the matter concerns an issue of public interest and the defendant reasonably believed that the publication was in the public interest. A non-exhaustive list of factors are set out in the provision which the Court may take into account in assessing whether the defendant's belief was reasonable.

4. Contextual truth defence has been fixed to address a drafting issue in the previous provisions. Defendants will be allowed to "plead back" substantially true imputations so that if a defendant can justify some, but not all, of the plaintiff's imputations it will have a complete defence to the cause of action so long as the imputations which cannot be proved true do not further harm the plaintiff's reputation than the imputations which can be proved substantially true.

5. Clarification that the cap on damages for non-economic loss applies even if aggravated damages are also awarded (rectifying the position following the decision in Bauer Media v Wilson [No.2] [2018] VSCA 154) and are calculated on a scale so that the maximum value should only be awarded in the most serious case. Aggravated damages will now need to be awarded separately to awards of damages for non-economic loss.

On 8 September 2021, the High Court of Australia delivered its decision in Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited & Australian News Channel Pty Ltd v Voller [2021] HCA 27, with a majority of the judges finding that media organisations are publishers of third party comments posted on their Facebook pages. The majority found that neither knowledge of a defamatory matter nor intention to communicate it is required for a person to be a publisher. The decision will apply to all organisations and individuals which operate a public Facebook page.

A second stage of the defamation reform process is currently underway, which is considering issues related to online publication, including whether a legislative fix is required to address the Voller situation and whether immunities or safe harbours should be introduced for certain internet intermediaries.

Internet intermediaries, including social media service providers, electronic service providers, internet service providers, app distribution service providers and hosting service providers, will also be impacted by the new Online Safety Act 2021 which comes into effect on 23 January 2022. The legislation establishes a complaints-based, removal notice system for online harms which will be overseen by the e-Safety Commissioner. The Commissioner will have the power to require the prompt removal of adult cyber abuse material, child cyber bullying material, non-consensual intimate images, child sexual abuse material and abhorrent violent material. The legislation also repeals and replaces longstanding provisions of the Broadcasting Services Act 1992.

The regulation of digital platforms was also increased this year by the introduction of a mandatory News Media and Digital Platforms Mandatory Bargaining Code, which has the aim of addressing bargaining power imbalances between digital platforms and Australian news businesses. The code enables eligible news businesses to bargain individually or collectively with digital platforms over payment for the inclusion of news on the platforms and services. The code follows the digital platforms inquiry conducted by the Australian Competition and Consumer Commission (ACCC) in 2019.

In September 2021, the ACCC released its report on a subsequent inquiry into the advertising technology (ad tech) sector, which identified significant competition concerns and likely harms to publishers, advertisers and consumers and has recommended that additional regulation be introduced. The ACCC’s Digital Platforms Branch is also conducting a separate five-year inquiry into markets for the supply of digital platform services.

There was no significant merger and acquisition activity in the media sector in the last year; however, a Senate Committee held public hearings into the state of media diversity, independence and reliability in Australia and published a report on 9 December 2021. A number of new audio-visual streaming services were launched recently including BINGE and Flash (Streamotion, a wholly-owned subsidiary of FOXTEL) and Paramount+ Australia (10 ViacommCBS).