If you run a Facebook page for your business, a community forum, or any online space where others can post comments, you have probably worried about what happens when someone writes something defamatory. We understand the significant distress and reputational anxiety that online defamation causes to individuals and business owners. The feeling of being unfairly targeted in a public forum can be overwhelming and exhausting.
Until recently, Australian defamation law held you responsible for those comments, even if you did not write them and had no idea they existed.
That position came from a 2021 High Court case that sent shockwaves through Australian businesses. Fortunately, recent legislative changes offer genuine protection. But these protections come with conditions you need to understand.
The Voller Decision: Why Page Admins Were Suddenly at Risk
In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the High Court considered whether media companies could be held liable as "publishers" of defamatory comments that third parties posted on their Facebook pages.
The facts were straightforward. Three media organisations ran Facebook pages where they shared news stories. Members of the public left comments on these posts, and some of those comments were allegedly defamatory of Dylan Voller. Mr Voller sued the media companies, not the individual commenters.
The High Court found the media companies were publishers of those third-party comments. By creating and maintaining Facebook pages that invited public comment, they had helped spread whatever the public chose to post.
The decision created immediate concern for anyone running a social media presence. A small business owner with a Facebook page could, in theory, be sued for a defamatory review or comment they had never seen. Research on digital defamation trends showed these cases were already increasing, and Voller threatened to increase those numbers.
The 'Serious Harm' Threshold
A critical component of the modern legal landscape is the 'serious harm' threshold. Under the Stage 1 reforms, a plaintiff must prove that the publication has caused, or is likely to cause, serious harm to their reputation. This requirement filters out minor or trivial claims, ensuring the legal system addresses only those matters causing significant damage. For corporations allowed to sue, they must also demonstrate that the publication has caused, or is likely to cause, serious financial loss.
How Defamation Law Has Changed: The Stage 2 Reforms
The Model Defamation Amendment Provisions 2023 (the Stage 2 reforms) directly address the issues raised in Voller. These reforms have commenced in Victoria (11 September 2024), New South Wales and the ACT (1 July 2024), with other jurisdictions following.
The reforms introduce the concept of a "digital intermediary." You are a digital intermediary if you provide or administer an online service where defamatory content appears, but you are not the person who wrote, originated or posted that content.
This definition covers a wide range of situations: the café owner whose Google Business profile attracts reviews, the community group administrator managing a Facebook page, the forum moderator overseeing discussions on a website.
The New Defence for Digital Intermediaries
Under the new laws, digital intermediaries can avoid liability for third-party defamatory content if they meet two conditions:
- An accessible complaints mechanism: You must have a clear way for people to submit written complaints about defamatory content. This could be an email address, a contact form, or a complaints submission page. The mechanism needs to be genuinely accessible, meaning people can actually find and use it.
- Reasonable access prevention steps within seven days: When you receive a valid complaint, you must take reasonable steps to remove, block, disable or prevent access to the defamatory content within seven days.
If you can prove both elements, you have a complete defence to a defamation claim based on that third-party content.
There is one exception. The defence fails if you were motivated by malice in providing the platform where the defamatory content appeared. This is a difficult standard to meet, requiring proof of improper purpose, but it prevents the defence being used by those who deliberately create spaces for defamatory attacks.
Separate Exemptions for Technical Services
The reforms also create separate exemptions for digital intermediaries providing caching, conduit or storage services. These technical functions (think web hosting, internet service provision, or content delivery networks) are exempt from liability entirely, provided the intermediary does not participate in, encourage or promote the defamatory publication.
Search engines also receive protection for organic search results, reflecting the Google LLC v Defteros [2022] HCA 27 decision. This exemption does not extend to paid or promoted content.
Who Can Sue: The 10-Employee Rule
It is also important to understand which businesses can bring a claim. Generally, corporations with 10 or more employees are prohibited from suing for defamation. This rule ensures that defamation laws protect individuals and small businesses rather than being used by large corporations to suppress public discussion.
What This Means for Your Business
If you manage any online presence where others can post content, you should take practical steps now.
Set up a complaints mechanism. Create a clear, easy-to-find way for people to report defamatory content. An email address works ([email protected]), as does a simple web form. Make sure it is visible on your website and, where possible, linked from your social media pages.
Monitor for complaints. The seven-day clock starts when you receive a valid complaint. If complaints go to an email address nobody checks, you will not meet the timeframe. Assign someone to review incoming complaints regularly.
Act promptly on valid complaints. When someone reports content that appears defamatory, you have seven days to take reasonable access prevention steps. Removing the content is the safest approach. If you are unsure whether content is defamatory, seek legal advice quickly.
Document everything. Keep records of your complaints mechanism, the complaints you receive, and the steps you take in response. If you ever need to rely on the defence, you will need to prove each element.
The Gap in Protection: Original Posters Remain Exposed
The Stage 2 reforms protect digital intermediaries, but they do not protect the person who created the original post on which defamatory comments appear. If you post something on your Facebook page and a third party leaves a defamatory comment, the reforms may protect you as the page administrator. But if someone argues you are the "originator" of the thread that attracted the comment, the analysis becomes more complicated.
This distinction matters for businesses managing social media. You might be protected from liability for random comments on your page, but the protection has limits. Businesses dealing with anonymous online attackers should understand both the new protections and their boundaries.
Jurisdictional Consistency
Australian defamation law was intended to be uniform across all states and territories. While there were initial delays, the jurisdictions have aligned. Western Australia enacted the Stage 1 reforms, including the serious harm threshold, effective 1 July 2022, and the Northern Territory enacted them effective 1 December 2021. Both jurisdictions have since progressed toward Stage 2 adoption. Additionally, as of early 2025, South Australia moved to harmonize its Defamation Act with the Model Provisions to ensure consistency for digital platforms, effectively adopting the intermediary protections.
If You've Been Defamed: Your Rights Remain
The reforms protect digital intermediaries, but they do not diminish your rights if you have been defamed. We recognize that seeing your name or business slandered online is incredibly painful. You can still pursue the person who wrote the defamatory content. You can still seek removal through complaints mechanisms. And if a digital intermediary fails to remove content after a valid complaint, the defence may not apply to them.
Timing is essential when dealing with defamation. There is a strict one-year limitation period from the date of publication to commence legal action, which creates a necessary sense of urgency for anyone whose reputation is under attack. While a court can grant an extension of up to three years in limited circumstances, you should act as soon as possible. Furthermore, there is a statutory cap on non-economic damages, currently indexed at $459,000, which limits the amount a court can award for non-financial loss.
The reforms also do not affect other defences or the requirement to serve a concerns notice before commencing proceedings. If you are considering a social media defamation claim, you still need to follow the mandatory process under the Defamation Act 2005.
Businesses facing malicious trade libel or false statements causing commercial harm retain their rights to pursue claims against the original authors of defamatory content.
What To Do Next
If you run any online platform where others can post, implement an accessible complaints mechanism now. Do not wait until you receive a complaint to work out your process.
If you have been defamed online and want to pursue a claim, understand that the reforms may affect who you can sue. The original author remains liable. The platform's liability depends on whether they qualify for the new defence.
If you are unsure about your position, whether as a potential claimant or as someone managing an online presence, get specific advice about your circumstances. The reforms are a major change in Australian defamation law, and understanding where you stand is the first step toward protecting your interests.
This is general information only, not legal advice. You should obtain independent legal advice about your specific circumstances.
