New South Wales Consolidated Acts

DEFAMATION ACT 2005 - SECT 31A

31A Defence for publications involving digital intermediaries

(1) It is a defence to the publication of defamatory digital matter if the defendant proves--

(a) the defendant was a digital intermediary in relation to the publication, and

(b) the defendant had, at the time of the publication, an accessible complaints mechanism for the plaintiff to use, and

(c) if the plaintiff gave the defendant a written complaint under this section about the publication--reasonable access prevention steps, if steps were available, were taken in relation to the publication, whether before the complaint was given or within 7 days after the complaint was given.

Note--:

1 The defendant is not required to prove paragraph (c) to establish the defence if the plaintiff has not given the defendant a complaint about the publication under this section. Subsection (3) sets out requirements for giving complaints.

2 Subsection (6) defines
"accessible complaints mechanism" .

(2) For subsection (1)(c), reasonable access prevention steps were taken in relation to the publication of digital matter if--

(a) for access prevention steps taken by the defendant--the steps taken were reasonable for the defendant to take in the circumstances, or

(b) for access prevention steps taken by another person--it was reasonable for the defendant not to take steps because of the steps already taken.

(3) A written complaint is given under this section about the publication of defamatory digital matter if--

(a) the complaint contained information sufficient to enable a reasonable person in the defendant's circumstances to be made aware of the following--

(i) the name of the plaintiff,

(ii) the matter and where it could be located,

(iii) that the plaintiff considered the matter to be defamatory, and

(b) the complaint was given using an accessible complaints mechanism for the plaintiff to use or given to the defendant in another way permitted by section 44.

(4) A defence under this section is defeated only if the plaintiff proves the defendant was actuated by malice in establishing or providing the online service by means of which the digital matter was published.

(5) A defendant who would otherwise be a digital intermediary in relation to the publication of digital matter does not cease to be a digital intermediary for this section merely because the defendant took steps to detect or identify, or steps to remove, block, disable or otherwise prevent access by persons to, the following--

(a) defamatory or other unlawful content published, or sought to be published, by a person using the online service provided by the defendant,

(b) other content published, or sought to be published, by a person using the online service provided by the defendant that was incompatible with the terms or conditions under which the service was provided.

Note--: This subsection allows a defendant to rely on the defence despite the definition of
"digital intermediary" in section 4 excluding authors, originators or posters of digital matter if the defendant's editorial or moderating role over content published using the online service was limited to the steps mentioned in the subsection.

(6) In this section--

"accessible complaints mechanism" for a plaintiff to use means an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Examples of an accessible complaints mechanism--:

1 An email address or direct messaging address to which a complaint may be sent.

2 A webpage, or a part of a webpage, enabling details about a complaint to be uploaded or inputted.