AUSTRALIA: An Introduction to TMT: Media

AUSTRALIA: AN INTRODUCTION TO TMT: MEDIA 

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

This year has seen further significant change for the media industry in Australia. Changes to the regulatory landscape have played out both in the courtroom and in the legislature.

Defamation  

Throughout 2022, Australian courts have been applying and testing the new provisions of the Uniform Defamation Acts which have been implemented in all States and Territories apart from Western Australia and the Northern Territory.

The cases handed down to date have largely concerned the new serious harm threshold, whereby a plaintiff must prove that the publication of defamatory matter has caused, or is likely to cause, serious harm (for individuals) or serious financial loss (for excluded corporations). The key lessons emerging from recent cases include that:

• There must be causation between the publication and the serious harm.

• It is the matter complained of, not the imputations, that must be found to have caused or be likely to cause serious harm.

• Serious harm requires fact-rich proof of harm which is actually or likely to be serious.

• Relevant factors to be taken into account include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether the recipients believe the imputations.

• Serious harm is not satisfied by injury to feelings, however great.

• If adequate particulars of serious harm are not included in a concerns notice, any proceedings which are subsequently commenced may be invalidated.

There have also been some preliminary decisions concerning the new public interest defence in s 29A of the amended Uniform Defamation Acts, including in Murdoch v Private Media Pty Ltd [2022] FCA 1275, in which Lachlan Murdoch (co-chairman of News Corp and executive chairman and CEO of Fox Corporation) has sued online news and commentary website Crikey. In an interlocutory decision, the Federal Court held that authorities relating to the previous statutory qualified privilege defence should not be applied when considering the public interest defence because the two defences operate differently. The Court also held that the public interest defence is pleaded to the matter complained of, not to the alleged defamatory imputations. This case is likely to be the first to substantively consider and apply the public interest defence.

The second stage of the defamation reform process, which focuses on digital intermediary liability, has been progressing with a draft bill released for public consultation in August 2022. As drafted, the proposed reforms would:

• introduce a conditional, statutory exemption from defamation liability for mere conduits, caching and storage services;

• introduce a conditional, statutory exemption from defamation liability for standard search engine functions;

• deal with the liability of digital intermediaries for third-party content (such as the media defendants in Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited & Australian News Channel Pty Ltd v Voller [2021] HCA 27) by either:

o providing a safe harbour defence for digital intermediaries where the third-party originator is not sufficiently identifiable, whereby after receiving a complaints notice the intermediary would either need to provide the third party's contact details to the complainant (with the third party's consent) or take access prevention steps in relation to the content within 14 days in order to avoid liability; or

o providing a bolstered innocent dissemination defence for digital intermediaries.

A revised bill is expected following a review of submissions received.

Consistent with these proposals, in August 2022 the High Court handed down its decision in Google LLC v Defteros [2022] HCA 27, with the majority holding that the mere provision of a hyperlink in Google's search results to defamatory content on a third-party website does not make Google liable as a publisher of that content.

Regulation of digital platforms 

Following the introduction of the Online Safety Act 2021 (Cth) in January 2022, the eSafety Commissioner's annual report publicly reported on the adult cyber abuse scheme for the first time. While the majority of reports were deemed not to meet the threshold for cyber abuse, 212 notifications were made to platforms for terms of services breaches and 82% of that content was removed.

The eSafety Commissioner also reported an increase in the number of reports of cyberbullying and image-based abuse. The eSafety Commissioner has also been working with online industry participants to develop mandatory codes to reduce access and exposure to harmful online material, including material promoting child sexual abuse, terrorism, extreme crime and violence, crime and violence, and drug-related content. The draft codes were released for public comment in September 2022.

Once introduced, these codes will apply in addition to the Australian Code of Practice on Disinformation and Misinformation, which was launched in February 2021. Signatories include Google, Meta, Microsoft, Twitter, TikTok and Apple. In March 2022 the Australian Communications and Media Authority (ACMA) published a report on the adequacy of the Code. ACMA’s report noted that online disinformation and misinformation was still prevalent, but acknowledged platforms were taking proactive steps in accordance with the Code to address these issues. In response, industry body DIGI announced a review of the Code in June 2022, which is ongoing.

In March 2022 the Australian Competition and Consumer Commission (ACCC) instituted Federal Court proceedings against Meta alleging it engaged in false, misleading or deceptive conduct by publishing scam advertisements promoting cryptocurrency and money-making schemes featuring prominent Australian public figures in breach of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth). The ACCC will allege that Meta is responsible for the advertisements that it publishes on its platform and claims Meta should have been doing more to detect and then remove false or misleading ads on Facebook.

The ACCC also released a report in November 2022 recommending new laws to address scams, fake reviews, consumer complaints and anti-competitive behaviour arising in relation to digital platforms.

Privacy & data 

The Commonwealth government has committed to sweeping reforms of Australia's privacy laws, with a commitment to align data laws with Europe and parts of North America. As part of the reforms, the introduction of an online privacy code is proposed, which would apply to social media and other online platforms. New telecommunications laws have also been foreshadowed for consumer protection purposes following a data breach at Optus, which affected nearly ten million customers.

In February 2022 the Full Federal Court confirmed an earlier ruling that Facebook (now Meta) 'carries on a business' and collects personal information in Australia by installing cookies on Australian devices in Australia, and is therefore caught by the extraterritorial application of the Privacy Act 1988 (Cth). In September 2022 special leave was granted for Facebook to appeal the decision to the High Court.

Mergers & acquisitions 

There was no significant merger and acquisition activity in the media sector in the last year.