s 1Short title
This Act may be cited as the Defamation Act 2006.
This Act may be cited as the Defamation Act 2006.
The objects of this Act are:
to enact provisions to promote uniform laws of defamation in
Australia; and
to ensure the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and
to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
In this Act:
access prevention step, in relation to the publication of digital matter, means a step:
to remove the matter; or
(b) to block, disable or otherwise prevent access, whether by some or all persons, to the matter.
aggrieved person, for Part 3, Division 1, has the meaning in section 11(1).
applicable period, for an offer to make amends, see section 13.
associated entity, see section 50AAA of the Corporations Act 2001 (Cth).
Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).
Australian jurisdiction means:
a State; or
a Territory; or
the Commonwealth.
Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).
caching service, for Part 2, Division 2A, see section 9B.
concerns notice, see section 11A.
conduit service, for Part 2, Division 2A, see section 9B.
country includes:
(a) a federation and a state, territory, province or other part of a federation; and
an Australian jurisdiction.
digital intermediary, in relation to the publication of digital matter, means a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published.
Note for definition digital intermediary
There may be more than one digital intermediary in relation to the publication of the same digital matter.
digital matter means matter published in electronic form by means of an online service.
document means any record of information, and includes:
anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
a map, plan, drawing or photograph.
electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both.
excluded corporation, see section 8.
further particulars notice, see section 11A(3).
general law means the common law and equity.
matter includes:
(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and
(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication; and
a letter, note or other writing; and
a picture, gesture or oral utterance; and
(e) any other thing by means of which something may be communicated to a person.
matter in question, for Part 3, Division 1, has the meaning in section 11(1).
offer to make amends means an offer to make amends under Part 3, Division 1.
online service means a service provided to a person, whether or not it is requested or it is for a fee or reward, to enable the person to use the internet, including, without limitation, a service enabling a person:
to access or connect to the internet; or
to use the internet to do one or more of the following:
send or receive content;
store content;
index content;
search for content;
share content;
interact with other persons.
Examples for definition online service
1 An internet-based social media platform.
2 A forum created or administered by a person using a facility provided by an internet-based social media platform that enables users to share content or interact with other users about a topic.
3 A website or other internet-based platform that enables knowledge to be shared by or with its users.
parliamentary body means:
a parliament or legislature of any country; or
a house of a parliament or legislature of any country; or
a committee of a parliament or legislature of any country; or
(d) a committee of a house or houses of a parliament or legislature of any country.
poster, in relation to the publication of digital matter, means a person who uses the online service by means of which the matter is published for the purpose of communicating the matter to one or more other persons.
search engine, for Part 2, Division 2A, see section 9B.
search engine provider, for Part 2, Division 2A, see section 9B.
search result, for Part 2, Division 2A, see section 9B.
storage service, for Part 2, Division 2A, see section 9B.
publisher, for Part 3, Division 1, has the meaning in section 11(1).
substantially true means true in substance or not materially different from the truth.
Territory means the Australian Capital Territory or Northern Territory.
this jurisdiction means the Northern Territory.
This Act binds the Crown in right of this jurisdiction and, to the extent the legislative power of the Legislative Assembly permits, the
Crown in all its other capacities.
Part 2 General principles
Division 1 Defamation and the general law
This Act relates to the tort of defamation at general law.
(2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).
(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the Acts repealed by section 44 had never been enacted.
The distinction at general law between slander and libel remains abolished.
Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.
Division 2 Causes of action for defamation
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.
(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
A corporation is an excluded corporation if:
(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
(b) it has fewer than 10 employees and is not an associated entity of another corporation;
and the corporation is not a public body.
(3) In counting employees for the purposes of subsection (2)(b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.
(5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.
In this section:
corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body.
employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is:
(a) engaged in the day-to-day operations of the corporation other than as a volunteer; and
subject to the control and direction of the corporation.
public body means a local government body or other governmental or public authority constituted by or under a law of any country.
A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to:
the publication of defamatory matter about a deceased person (whether published before or after his or her death); or
the publication of defamatory matter by a person who has died since publishing the matter.
Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of that subsection.
(1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.
(3) The judicial officer in defamation proceedings is to determine whether the serious harm element is established.
(4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer's own motion):
(a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and
(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).
(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).
(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following:
the cost implications for the parties;
the resources available to the court at the time;
(c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.
(7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.
(8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).
Division 2A Exemptions from liability for digital intermediaries
In this Division:
caching service means an online service whose principal function is to provide automatic, intermediate and temporary storage of content for the purpose of making the onward electronic transmission of the content more efficient for its users.
Example for definition caching service
A service for temporarily and automatically storing files that are most frequently downloaded by users of a website to speed up the download time for the files.
conduit service means an online service whose principal function is to enable its users to access or use networks or other infrastructure to connect to, or send or receive data by means of, the internet.
Examples for definition conduit service
1 A service provided by an internet service provider enabling its users to connect to the internet.
2 An internet-based service enabling its users to send emails or send text messages to other persons.
search engine means a software application or system designed to enable its users to search for content on the internet.
search engine provider, for a search engine, means a person who maintains, or provides users with access to the search functions of, the search engine.
search result means a result generated by a search engine that is limited to identifying a webpage on which content is located by reference to one or more of the following:
the title of the webpage;
a hyperlink to the webpage;
an extract from the webpage;
an image from the webpage.
storage service means an online service, other than a caching service, whose principal function is to enable its users to store content remotely.
Example for definition storage service
An internet-based cloud service enabling its users to store documents, videos or photographs for later retrieval.
(1) A digital intermediary is not liable for defamation for the publication of digital matter if the intermediary proves:
(a) the matter was published using one or more of the following services provided by the intermediary:
a caching service;
a conduit service;
a storage service; and
(b) the intermediary's role in the publication was limited to providing one or more of the services mentioned in paragraph (a); and
the intermediary did not do any of the following:
initiate the steps required to publish the matter;
select any of the recipients of the matter;
encourage the poster of the matter to publish the matter;
(iv) edit the content of the matter, whether before or after it was published;
promote the matter, whether before or after it was published.
(2) Subsection (1)(c) does not apply in relation to action taken because it is required by or under a law of an Australian jurisdiction or an order of an Australian court or Australian tribunal.
Example for subsection (2)
Action taken to comply with a code of conduct or other document regulating conduct that a digital intermediary is required to comply with by a law of an Australian jurisdiction.
(3) Subsection (1) applies regardless of whether the digital intermediary knew, or ought reasonably to have known, the digital matter was defamatory.
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