New South Wales Consolidated Acts

DEFAMATION ACT 2005 - SECT 39A

39A Orders against non-party digital intermediaries concerning defamatory digital matter

(1) This section applies in relation to defamation proceedings for the publication of digital matter if--

(a) the plaintiff has obtained judgment for defamation against the defendant in the proceedings, or

(b) a court has granted a temporary injunction or makes another temporary order preventing the defendant from continuing to publish, or from republishing, the matter pending the determination of the proceedings, or

(c) a court has granted a final injunction or makes another final order preventing the defendant from continuing to publish, or from republishing, the matter.

(2) In defamation proceedings to which this section applies, the court may order a digital intermediary who is not a party to the proceedings (a
"non-party digital intermediary" ) to take access prevention steps or other steps the court considers necessary in the circumstances--

(a) to prevent or limit the continued publication or republication of the matter, or

(b) to comply with, or otherwise give effect to, the judgment, injunction or other order mentioned in subsection (1).

(3) Without limiting subsection (2), an order under this section may--

(a) require 1 or more steps to be taken, or

(b) require a step to be taken in relation to all, or only some, of the users of an online service.

(4) The court may not make an order under this section against a non-party digital intermediary unless the intermediary has been given an opportunity to be heard about whether it is appropriate for the order to be made.

(5) Despite subsection (4), the court may make a temporary order without giving the non-party digital intermediary an opportunity to be heard about whether it is appropriate to make the order if the court considers it necessary in the circumstances for the order to be made expeditiously pending a subsequent hearing concerning whether a further temporary order or a final order should be made.

(6) An order may be made under this section even if the non-party digital intermediary is not, or may not be, liable for defamation, including because of a defence, for the publication of the digital matter to which the defamation proceedings relate.

(7) This section does not limit other powers the court may have apart from this section to grant injunctions or make other orders requiring a non-party digital intermediary to take access prevention steps or other steps.