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The Australian Constitution does not expressly guarantee freedom of expression or speech. However, the High Court of Australia has held that there is an implied constitutional guarantee of freedom of political communication. In addition, protections for freedom of speech are found in the common law and in Australia’s international obligations. Various legislative provisions, including criminal law provisions, restrict freedom of speech.
There are no specific provisions in Australian federal, state, or territory laws that deal with the online harassment of journalists. However, a general provision in the federal Criminal Code can be used to prosecute cyberbullying or cyberstalking of different forms. In addition, state and territory provisions related to threats and stalking may be applicable. There are also criminal provisions related to the nonconsensual sharing of intimate images, as well as a national-level complaints system that can lead to removal orders and civil penalties. Federal, state, and territory laws also deal with vilification or “hate speech” based on various grounds, with either or both criminal and civil offenses applying, including in the context of publicly available social media posts. There are also nationally consistent defamation laws containing both civil and criminal offenses. Commentators have noted an increased use of civil defamation laws in the context of social media posts.
While these provisions can potentially all be used with respect to the online harassment of journalists, few cases were located in which the perpetrators of such harassment were prosecuted or sued. Official reviews of legislation relevant to cyberbullying and cyberstalking, including criminal laws and the Enhancing Online Safety Act 2015 (Cth), have noted that journalists, and particularly women, regularly face harassment on social media. The recommended legislative and nonlegislative changes, however, have not been specific to journalists.
A. Freedom of Speech
There are no constitutional or federal statutory provisions expressly guaranteeing freedom of speech, opinion, expression, or the media in Australia. However, the High Court of Australia has established an implied constitutional guarantee of freedom of political communication, holding that free communication on matters of government and politics is an “indispensable part of the system of representative and responsible government created by the Constitution.” This freedom “does not protect a personal right, but rather, the freedom acts as a restraint on the exercise of legislative power by the Commonwealth.”
One state, Victoria, has a Charter of Rights, while the Australian Capital Territory and Queensland have enacted human rights statutes that include protections for freedom of expression.
In addition, the different branches of government give consideration to international human rights conventions in developing and applying legislation. For example, “where a statute is ambiguous courts will generally favour a construction that accords with Australia’s international obligations.”
Freedom of speech is also recognized as a right protected by the common law. The Australian Law Reform Commission explains that
it is widely recognised that freedom of speech is not absolute. In Australia, legislation prohibits, or renders unlawful, speech or expression in many different contexts. Some limitations on speech have long been recognised by the common law itself, such as obscenity and sedition, defamation, blasphemy, incitement, and passing off.
Numerous Commonwealth laws may be seen as interfering with freedom of speech and expression. There are, for example, more than 500 government secrecy provisions alone. In the area of commercial and corporate regulation, a range of intellectual property, media, broadcasting and telecommunications laws restrict the content of publications, broadcasts, advertising and other media products. In the context of workplace relations, anti-discrimination law—including the general protections provisions of the Fair Work Act 2009 (Cth)—prohibit certain forms of speech and expression.
The Commission further noted that a number of offenses in the federal Criminal Code “directly criminalise certain forms of speech or expression.”
B. Online Harassment of Journalists in Australia
The online harassment faced by journalists, particularly women, has been identified by media organizations as a particular issue in Australia. For example, in March 2016, it was reported that a survey of 1,054 journalists (91.8% of whom were women) showed that 41% of in-house journalists were trolled and 18% of freelancers had been cyberstalked. According to a report on the survey,
[s]adly, 41% of respondents have experienced harassment, bullying and trolling on social media, from mild instances to death threats and stalking. Several women say they have been silenced, or changed career, because of this harassment.
Only 16% of respondents were aware of their employer’s strategies to deal with social media threats. But responsibility extends beyond the media sector, to law enforcement agencies and owners of platforms.
There are no specific legislative provisions aimed at protecting journalists from online harassment. However, a general provision in the federal Criminal Code can be used to prosecute those who engage in cyberbullying or online harassment. There are also various potentially relevant criminal provisions at the state and territory level, as well as civil offenses such as defamation and certain forms of vilification. In addition, the federal government has established the role of the eSafety Commissioner, including complaint processes related to social media posts and intimate images, and is considering further expanding its role with respect to cyberbullying.
C. Report on Adequacy of Existing Criminal Laws to Capture Cyberbullying
The adequacy of existing federal, state, and territory criminal laws to capture cyberbullying was considered by the Senate Legal and Constitutional Affairs References Committee in a report published in March 2018. Two organizations representing journalists made submissions to the Committee. The Committee’s report noted the argument from these submitters that “cyberbullying is a particular problem for those working in public-facing media roles.”
The Committee made several recommendations, including that Australian governments ensure that
- the general public has a clear awareness and understanding of how existing criminal offences can be applied to cyberbullying behaviours;
- law enforcement authorities appropriately investigate and prosecute serious cyberbullying complaints under either state or Commonwealth legislation, coordinate their investigations across jurisdictions where appropriate, and make the process clear for victims of cyberbullying, and
- consistency exists between state, territory and federal laws in relation to cyberbullying.
The Committee also recommended that the government consider increasing the maximum penalty under section 474.17 (discussed below) from three years’ imprisonment to five years’ imprisonment, ensure that the Office of the eSafety Commissioner has appropriate funding and resources and consider certain changes to the Enhancing Online Safety Act 2015 (Cth) with respect to the role of the Commissioner, put regulatory pressure on social media platforms “to both prevent and quickly respond to cyberbullying material on their platforms,” and “legislate to create a duty of care on social media platforms to ensure the safety of their users.”
II. Federal Legislation Relevant to Online Harassment of Journalists
A. Misuse of Carriage Service
1. Using a Carriage Service to Menace, Harass, or Cause Offense
The Senate Legal and Constitutional Affairs References Committee noted that, while the Criminal Code Act 1995 (Cth) does not define “cyberbullying,” there are a number of offenses that could be relevant to cyberbullying. These include
- section 474.14 (using a telecommunications network with intention to commit a serious offence);
- section 474.15 (using a carriage service to make a threat);
- section 474.16 (using a carriage service for a hoax threat);
- section 474.17 (using a carriage service to menace, harass or cause offence); and
- section 474.29A (using a carriage service for suicide related material).
Of these, section 474.17 is the most “notable.” Under this section, which provides for a maximum punishment of three years’ imprisonment,
a. A person commits an offence if:
1. the person uses a carriage service; and
2. the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
In a submission to the Committee, the Attorney-General’s Department provided the following explanation of this offense:
The ‘reasonable person’ frames the offence by reference to what a reasonable person would regard as menacing, harassing or offensive, not what the accused intended. It follows that the prosecution would not have to prove that the person intended to menace, harass or cause offence.
Consistent with the principles set out in Chapter 2 of the Criminal Code, the individual concerned must have intended to use the carriage service and have been reckless as to whether they were using a carriage service in a way that a ‘reasonable person’ would regard, in all the circumstances, as menacing, harassing or offensive.
. . .
Section 474.17 does not further define what constitutes menacing, harassing or offensive conduct. This enables community standards and common sense to be imported into a decision on whether the conduct is in fact menacing, harassing or offensive.
However, section 474.17 was constructed to ensure the use of a carriage service by a person can be menacing, harassing or offensive to the reasonable person because of the way the carriage service has been used or the content of the communication, or both.
The Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 introduced section 474.17 into the Criminal Code. The Explanatory Memorandum for the Bill states that the offence covers scenarios such as the use of a carriage service to make a person apprehensive as to their safety or well-being or the safety of their property, to encourage or incite violence, or to vilify persons on the basis of their race or religion.
The use of a carriage service may be ‘harassing’ through the quantity and frequency of communications being sent. ‘The method of use’ refers to the actual way the carriage service is used, rather than what is communicated during that use. The continual making of unwanted telephone calls to a particular person would likely fall into this category.
The use of a carriage service may be ‘menacing’ where an individual causes another person to be in fear. The sending of threatening and abusive messages and images via social media would likely fall into this category.
The use of a carriage service may ‘cause offence’ where the content of those communications are considered offensive subject to the ‘reasonable person’ test. Sending unwanted offensive and sexually explicit communications would likely fall in this category.
Section 473.4 of the Criminal Code provides matters to be taken into account where determining whether material or the particular use of a carriage service is offensive. These are standards of morality, decency and propriety generally accepted by reasonable adults, the literary, artistic or educational merit (if any) of the material, and the general character of the material, including whether it is of a medical, legal or scientific character.
The Committee noted that, according to data from the Commonwealth Director of Public Prosecutions, 927 charges against 458 defendants had been found proven under section 474.17 since it was introduced in 2004. Although it was not possible to say how many of the cases involved cyberbullying, the Attorney-General’s Department said that there had been “numerous instances” of cyberbullying prosecuted. In addition, the figures did not include prosecutions under the provision taken by state and territory authorities.
A recent example of an arrest under section 474.17 occurred in March 2019, when police charged “one of Australia’s most prominent far-right extremists with allegedly making repeated and explicit threats against a Melbourne journalist and lawyer.” The accused faces multiple charges, “including using a carriage service to menace and to issue threats to do serious harm.”
The Women in Media (WiM) submission to the Committee stated that WiM members “receive vast numbers of menacing, harassing and intimidating messages on social media platforms and by email on a regular basis.” It also noted that the “nature of the social media environment makes it easy to target WiM members, and it can often be difficult to resolve these issues.” The group had sought advice on the application of section 474.17 from the New South Wales Police Force (NSWPF), which said that they take cyberbullying, threats, and harassment seriously, and that officers are “now trained in attending to the victims’ welfare and preserving all evidence available.” They advised that WiM members should report online material targeting them to their local police. However, WiM noted that investigations and prosecutions can be problematic due to the anonymity afforded by technology.
The Media, Entertainment and Arts Alliance (MEAA) submission similarly stated that “[t]he lived experience of many MEAA members working in the media industry is of being regularly subjected to harassment, abuse and threats on social media, where existing laws are not enforced and where there are gaps in the current legislative regime.” Both submissions called for greater education with respect to cyberbullying and the penalties that can apply under section 474.17.
2. Aggravated Offenses Involving Private Sexual Material
A new provision, section 474.17A, was inserted into the Criminal Code by the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) and came into effect on August 31, 2018. Under this provision, where a person commits an offense under section 474.17, and the commission of that offense involves the “transmission, making available, publication, distribution, advertisement or promotion” of material that is “private sexual material,” they can be guilty of an aggravated offense and be imprisoned for up to five years. A “special aggravated offense,” subject to a penalty of imprisonment for up to seven years, applies where, before the commission of the aggravated offense, three or more civil penalty orders were made against the person in relation to breaches of the relevant provision of the Enhancing Online Safety Act 2015 (Cth). This latter Act is discussed further below.
B. Racial Vilification Law
Section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) provides that it is unlawful to do an act, “otherwise than in private,” if
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
This includes where the act “causes words, sounds, images or writing to be communicated to the public.” Certain exemptions apply, including where something was said or done reasonably and in good faith in making or publishing “a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
Individuals can make complaints to the Australian Human Rights Commission, where such claims are dealt with through a conciliation process. The Commission explains that
[i]f conciliation fails at the Commission, a complaint can proceed to the Federal Court or Federal Circuit Court. This happens in a very small number of cases. In 2015-16, the Commission finalised 86 complaints about racial hatred. Only one complaint about racial hatred proceeded to court.
The RDA does not make racial vilification a criminal offence, and offers only a civil remedy. Where a court finds a contravention of the Act, it may make orders for an apology or a correction, and/or award monetary damages.
Section 18C has been the subject of political and public debate in recent years. In 2017, the federal government introduced amendments to section 18C that included replacing the terms “offend, insult, humiliate” with the term “harass,” and providing that “an assessment of whether an act is reasonably likely to harass or intimidate a person or group of persons is made against the standard of a reasonable member of the Australian community.” During debate on the bill, the government introduced further amendments that sought to clarify that the prohibited harassment can occur at a distance, including online on social media. None of the amendments to section 18C were included in the final bill that was passed by the Parliament, having been defeated by opposition parties in the Senate.
C. Sexual Harassment Law
The federal sexual harassment law, contained in the Sex Discrimination Act 1984 (Cth), provides that sexual harassment is unlawful “in different areas of public life, including employment, service delivery, accommodation and education.” It does not appear to apply to, for example, online harassment of a sexual nature by a stranger outside of these contexts.
D. Enhancing Online Safety Act 2015
1. Role of the eSafety Commissioner
In 2015, the Australian government established the role of the eSafety Commissioner under the Enhancing Online Safety Act 2015 (Cth). The Act establishes a complaints service and system for the removal of cyberbullying material from participating social media services; however, this is only available for cyberbullying material targeted at an Australian child. In addition, the Commissioner has responsibilities with respect to promoting and enhancing online safety for all Australians, and provides “audience-specific content” to help educate Australians about online safety. The Commissioner also administers the Online Content Scheme under the Broadcasting Services Act 1992 (Cth), with powers to investigate certain illegal or offensive content.
2. Nonconsensual Sharing of Intimate Images
Under amendments to the Enhancing Online Safety Act made by the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth), the Office of the eSafety Commissioner now operates a complaint system and removal notice process in relation to the nonconsensual sharing of intimate images, whether or not the material is altered. The Office has an “image-based abuse” portal on its website with information on reporting abuse to the relevant social media service, the Office, and police. The complaints and objections system in the Act includes the following components:
(a) a person who posts, or threatens to post, an intimate image may be liable to a civil penalty;
(b) the provider of a social media service, relevant electronic service or designated internet service may be given a notice (a removal notice) requiring the provider to remove an intimate image from the service;
(c) an end‑user of a social media service, relevant electronic service or designated internet service who posts an intimate image on the service may be given a notice (a removal notice) requiring the end‑user to remove the image from the service;
(d) a hosting service provider who hosts an intimate image may be given a notice (a removal notice) requiring the provider to cease hosting the image.
3. Review of the Act
In mid-2018, the Australian government commissioned an independent review of the Enhancing Online Safety Act and the Broadcasting Services Act to “ensure we continue to have the right controls and support systems in place to protect Australians against harmful online content and ensure people can confidently participate in the online environment.” The report on the review, which was released in February 2019, referred to a submission from Women in Media, stating:
I found in this review that the tight limitation on the eSafety Commissioner’s role with respect to adults flies in the face of the experience of many people (especially women with high profiles, like journalists and politicians, Aboriginal and Torres Strait Islander women, Islamic spokespeople, and the families of murder and rape victims) with online harassment, vitriol, and predator trolling. A number of these women have approached the eSafety Commissioner for assistance.
“[In the words of Dunja Mitjatovic] ‘Female journalists and bloggers throughout the globe are being inundated with threats of murder, rape, physical violence and graphic imagery via email, commenting sections and across all social media . . . Male journalists are also targeted with online abuse, however, the severity, in terms of the sheer amount and content of abuse . . . is much more for female journalists.’ . . . These dangers do not stay online. Following extreme online harassment campaigns, we have had Women in Media members punched in the street and followed home. A couple of our members have had rape and death threats against them and their daughters.”
Such behaviour is totally unacceptable, and action needs to be taken to prevent it.
International experience suggests that it is no longer sensible to distinguish between the needs of children and adults for protection against online abuse. Online bullying and harassment can happen at all ages, and can escalate to physical violence. Accordingly, I recommend that the eSafety Commissioner’s remit should be extended to cover all adults experiencing cyber-bullying so that all children and all adults experiencing online abuse problems of a serious nature are within her remit, and that the Government provide additional resources and increased staffing resources (and ASL [Average Staffing Level]) to support the extended function.
The report recommended the introduction of new online safety legislation incorporating the directions in the report, including:
- objectives to protect against harm and promote online safety,
- the roles and responsibilities of the eSafety Commissioner in online safety and regulation,
- a technology, platform, service, distribution and device neutral approach to regulation,
- new legislative standards for a more proactive regulatory regime and toughened enforcement powers,
- streamlined industry requirements alongside a new mandatory industry code for all industry participants with online and digital activities, with the code commencing within a year of the new legislation being enacted,
- coverage of all Australians, including cyber-bullying coverage for all children and all adults,
- data collection and reporting requirements,
- new classification arrangements that focus on illegal, dangerous and harmful content, and
- other necessary adjustments as proposed.
In February 2019, following the release of the report, the Australian government released a draft Online Safety Charter setting out the government’s expectations of digital platforms in reducing harm, with the public consultation process running until early April 2019. The government states that, when finalized, “the Charter will be an important foundation document to shape the direction of future reform of online safety in Australia.”
In May 2019, the Liberal Party set out its online safety platform prior to the 2019 federal election that was held that month, following which it formed a government with its coalition partners. The platform included increasing penalties for the offense under section 474.17 of the Criminal Code, the introduction of new aggravated offenses, and new online safety legislation, as recommended in the review report. However, no relevant legislation has been introduced to date.
III. State-Level Laws Relevant to Online Harassment of Journalists
The Senate Committee noted that
[s]tate and territory criminal offences that could apply to cyberbullying vary between jurisdictions. Generally speaking, there are a variety of offences in each jurisdiction that could apply to cyberbullying behaviours. These offences tend to relate to stalking, harassment, assault, threats, and defamation.
In addition, states and territories have enacted legislation containing criminal provisions with respect to the nonconsensual sharing of intimate images, and other provisions prohibit or criminalize vilification based on race and other grounds (i.e., hate speech).
A. Stalking and Threats
Stalking, which may include an element of harassment, is a crime in all Australian states and territories and appears to be applicable to online communications. Other relevant provisions cover threats to kill or harm an individual. Existing offenses include:
- Australian Capital Territory: Crimes Act 1900 (ACT) sections 30 (threat to kill), 31 (threat to inflict grievous bodily harm), and 35 (stalking);
- New South Wales: Crimes (Domestic and Personal Violence) Act 2007 (NSW) sections 8 and 13 (stalking or intimidation with intent to cause fear of physical or mental harm); Crimes Act 1900 (NSW) sections 31 (documents containing threats) and 545B (intimidation or annoyance by violence or otherwise);
- Northern Territory: Criminal Code Act 1983 (NT) sections 166 (threats to kill) and 189 (stalking);
- Queensland: Criminal Code Act 1899 (Qld) sections 308 (threats to murder in document), 359 (threats), and 359A to 359F (stalking);
- South Australia: Criminal Law Consolidation Act 1935 (SA) sections 19 (threats) and 19AA (stalking);
- Tasmania: Criminal Code Act 1924 (Tas) sections 163 (threats to kill in writing) and 192 (stalking);
- Victoria: Crimes Act 1958 (Vic) sections 20 (threats to kill), 21 (threats to inflict serious injury), and 21A (stalking);
- Western Australia: Criminal Code Act Compilation 1913 (WA) sections 338A to 338C (threats) and 338D to 338E (stalking).
It appears that such provisions are rarely applied to cyberstalking or cyberbullying. For example, the Legal Services Commission of South Australia states that
[d]espite the provisions of the legislation, the prosecution of stalking-type offences is very difficult. Not only must there be at least two proven instances of the behaviour but the mental element of intention to cause harm or create fear must be established by the prosecution (in each instance being relied upon). Police policy is to caution or warn an offender in the first instance and this, in a majority of cases, is an effective way of dealing with the problem.
The expansion of legislation to allow for intervention orders on the basis of cyberstalking provides an alternative to prosecution [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(4)]. As with any criminal offence, a charge of stalking/cyberstalking must be proved beyond a reasonable doubt. In contrast, an application for an intervention order requires only that it can be established that a danger exists on the balance of probabilities. In addition, given terms of imprisonment for stalking are rare, an intervention order potentially offers a longer period of protection than a conviction could.
B. Anti-Vilification Laws
In addition to the federal racial vilification provision discussed above, state and territory anti-discrimination laws also contain provisions related to vilification or “hate speech.” However, these are not uniform. For example, several of the laws also prohibit inciting hatred on the basis of additional grounds, such as sexual orientation, religion, gender identity, and disability. Some jurisdictions have established both civil and criminal sanctions, while other laws only include one type of offense. All of the offenses appear to capture writing publicly viewable posts on social media; they do not cover private correspondence such as direct messages.
In Tasmania, only civil penalties apply to vilification on the basis of the extended categories above. The Australian Capital Territory’s civil vilification offense also covers extended grounds, being disability, gender identity, HIV/AIDS status, intersex status, race, religious conviction, and sexuality. Serious vilification based on these grounds is an offense under the territory’s Criminal Code.
In Queensland, vilification on the grounds of race, religion, sexuality or gender identification is unlawful. The legislation also contains an offense of serious racial, religious, sexuality or gender identity vilification.
In New South Wales, the Anti-Discrimination Act 1977 (NSW) prohibits racial, transgender, homosexual, and HIV/AIDS vilification, while the Crimes Act 1900 (NSW) criminalizes “publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status.” This offense was introduced through amending legislation passed in 2018, which also repealed the serious vilification offenses that had previously been included in the Anti-Discrimination Act.
Victoria’s Racial and Religious Intolerance Act 2001 (Vic) provides that racial and religious vilification is unlawful and criminalizes offenses of serious racial and religious vilification. South Australia also has civil and criminal sanctions for racial vilification.
The Western Australia Criminal Code contains provisions that make intentionally inciting racial animosity or racist harassment punishable by up to fourteen years’ imprisonment, while conduct that is “likely” to incite racial animosity or harassment is punishable by imprisonment for five years. Intentional racial harassment itself is also punishable by five years’ imprisonment. The state does not have a civil vilification law.
Vilification crimes are very rarely prosecuted in Australia. For example, a news report in May 2019 stated that only three people have been convicted under Victoria’s Racial and Religious Tolerance Act, while no convictions had been recorded in New South Wales and South Australia since the offenses had been introduced in 1994 and 1996 respectively. No cases were located in which a journalist was the alleged victim of such offenses.
C. Nonconsensual Sharing of Intimate Images
In May 2017, the federal, state, and territory governments agreed to the National Statement of Principles Relating to the Criminalisation of the Non-Consensual Sharing of Intimate Images. All states and territories except Tasmania have subsequently enacted legislation inserting relevant offenses into their respective criminal laws. The following provisions are currently in effect:
- Australian Capital Territory: Crimes Act 1900 (ACT) pt 3A (offenses of nonconsensual distribution of intimate images and for threatening to capture or distribute intimate images);
- New South Wales: Crimes Act 1900 (NSW) div 15C (offenses of recording, distributing, or threatening to distribute an intimate image without consent);
- Northern Territory: Criminal Code Act 1983 (NT) pt VI div 7A (offenses of distributing or threatening to distribute intimate images without consent);
- Queensland: Criminal Code Act 1899 (Qld) sections 223 and 229A (offenses of distributing or threatening to distribute an intimate image without consent);
- South Australia: Summary Offences Act 1953 (SA) pt 5A (includes offenses of distributing an invasive image without consent and threatening to distribute an invasive image);
- Victoria: Summary Offences Act 1966 (Vic) sections 41DA and 41DB (offenses of distributing or threatening to distribute an intimate image without consent); and
- Western Australia: Criminal Code Compilation Act 1913 (WA) ch XXVA (offenses involving distribution of intimate images).
As the relevant provisions are relatively new, there is limited information available on the number of prosecutions for these offenses. For example, the first prosecution under the Western Australia provisions only occurred in June 2019. According to a July 2019 news report, “[i]n the five months since “revenge porn” laws were passed in Queensland, 198 charges were laid.” This included “12 charges for distributing intimate images, 185 for distributing prohibited visual recordings and one for threatening to share images or videos.” No cases were located in which journalists were the alleged victims of prosecuted offenses.
1. Civil Defamation
Defamation law in Australia is governed by state and territory legislation, with such laws being largely consistent across the jurisdictions, having been modeled on uniform defamation provisions developed by the former Standing Committee of Attorneys-General (now the Council of Attorneys-General) in 2005. Under the defamation laws, “a publication will be defamatory if the published material has consequences of”:
- Exposing the person to ridicule; or
- Lowering the person’s reputation in the eyes of members of the community; or
- Causes people to shun or avoid the person; or
- Injures the person’s professional reputation.
Defamatory material will be considered to have been ‘published’ where it was communicated to someone other than the aggrieved person. The means of communication may be oral, written or through conduct – and includes electronic or online communication, postings on Facebook, twitter and other social media online forums.
The uniform defamation laws contain “statutory defences which operate in addition to the defences available under the common law and other specific legislation.” The statutory defences include justification or truth, contextual truth, honest opinion, and innocent dissemination.
Commentators have argued that civil defamation law tends to favor plaintiffs. They also note that there has been an increase in the use of civil defamation laws by individuals suing over social media postings. A study conducted in 2018 found that “just one in five plaintiffs in Australian defamation cases between 2013 and 2017 were public figures, and just one in four defendants were media companies. Over half the defamation cases (51 per cent) were digital.” One article noted that
Australia’s defamation laws weren’t written with social media in mind — in fact, some elements of our existing law are based on English precedents that predate the printing press, to say nothing of the smartphone.
But increasing numbers of Australians are nevertheless turning to the courts to protest defamatory comments made about them online or in texts — something which legal experts say leads to arduous and costly, years-long legal battles.
One recent case involving a defamation claim by a journalist related to a Twitter post by the actress Rebel Wilson, who published a photo of a journalist and called her “total scum” for allegedly harassing Wilson’s grandmother. In fact, the photo was of a different journalist of the same name. The misidentified journalist sued but the case was reportedly settled out of court before trial began.
In 2018, the New South Wales government announced that it intended to push for the reform of the uniform defamation laws, following a review of the state’s Defamation Act, calling it a “cyber-age reboot.” Subsequently, at a meeting of the Council of Attorneys-General, the states and territories agreed to convene a working party to consider reforms of the relevant statutes. In January 2019, an eighteen-month timetable was unveiled for the completion of the reforms. A discussion paper was then released in February 2019. Key issues being considered include “the capacity of corporations to take action; the processes for the resolution of disputes without litigation (including offers to make amends); and the possible introduction of a ‘single publication rule’ to address issues with material made available online.”
Broader technological issues were among the matters considered in the paper:
The discussion paper notes concerns raised by legal, media and technology stakeholders regarding the potential liability of online publishers and other digital services for defamatory matters communicated by others. In particular, the scope and utility of the existing defence of ‘innocent dissemination’ and the lack of a clear ‘safe harbour’ for online intermediaries of defamatory matter are being considered.
The Broadcasting Services Act 1992 (Cth) provides that state or territory law has no effect to the extent that it subjects an internet content host or internet service provider to liability for hosting or carrying particular content where they were not aware of the nature of the content. However, the scope of this protection has been questioned as it is unclear how it applies to search engines, social media sites or messaging services. The volume of content carried by these services also makes it challenging for them to remove material after being made aware of it.
The discussion paper acknowledges this issue is ‘one of the most complex to address and has implications beyond defamation law alone’. The overlap with other online content regulation issues is reflected in the ongoing Australian Competition and Consumer Commission inquiry into Digital Platforms and recent criminal laws regarding the sharing of abhorrent violent material. Potentially, the review’s findings could contribute to the amendment of the Broadcasting Services Act to clarify protections and responsibilities of online intermediaries in relation to content (such as responding to takedown notices).
2. Criminal Defamation
State and territory criminal codes include defamation as a criminal offense, also based on a provision in the model defamation law (except for Victoria, where this is a common law offense, supplemented by a statutory offense of publishing “false defamatory libel”). Such offenses are contained in the following provisions:
- Australian Capital Territory: Criminal Code Act 2002 (ACT) section 439;
- New South Wales: Crimes Act 1900 (NSW) section 529;
- Northern Territory: Criminal Code 1983 (NT) section 204;
- Queensland: Criminal Code 1899 (Qld) section 365;
- South Australia: Criminal Law Consolidation Act 1935 (SA) section 257;
- Tasmania: Criminal Code Act 1924 (Tas) section 196;
- Victoria: Wrongs Act 1958 (Vic) section 10;
- Western Australia: Criminal Code Act Compilation 1913 (WA) section 345.
The criminal defamation provisions are largely similar and impose a punishment of imprisonment for up to three years, with a fine also being an available punishment in some jurisdictions. It appears, however, that these provisions are very rarely applied. Various jurisdictions require leave from the Director of Public Prosecutions in order to prosecute a person for criminal defamation, with certain matters having to be considered. In addition, the same defenses that apply to civil defamation claims also apply in the context of criminal defamation. No cases were located involving the prosecution of individuals for making statements online with respect to journalists.
Foreign Law Specialist
 Freedom of Information, Opinion and Expression, Australian Human Rights Commission (May 1, 2013), https://perma.cc/6KNB-NDTA. See alsoMelissa Castan, The High Court and the Freedom of Political Communication, Castan Centre for Human Rights Law, Official Blog (Dec. 5, 2010), https://perma.cc/XV5X-6HCZ.
 ALRC, supra note 2, at 85.
 ALRC, supra note 2, at 78.
 Id. at 91.
 Senate Legal and Constitutional Affairs References Committee, Adequacy of Existing Offences in the Commonwealth Criminal Code and of State and Territory Criminal Laws to Capture Cyberbullying 22 (Mar. 2018), https://perma.cc/8LW8-EBXA.
 Id. at vii.
 Id. at vii-viii.
 Senate Legal and Constitutional Affairs References Committee, supra note 13, at 31.
 Criminal Code Act 1995 (Cth) s 474.17.
 Attorney-General’s Department, Submission of the Attorney-General’s Department – Senate Legal and Constitutional Affairs References Committee: The Adequacy of Existing Offences in the Commonwealth Criminal Code and of State and Territory Criminal Laws to Capture Cyberbullying 6 (Submission 20, Oct. 24, 2017), https://perma.cc/CZD5-DZ3A.
 Senate Legal and Constitutional Affairs References Committee, supra note 13, at 32.
 Women in Media, Women in Media Submission to the Senate Inquiry on the Adequacy of Existing Offences in the Commonwealth Criminal Code and of State and Territory Criminal Laws to Capture Cyber-bullying 7 (Submission 26, Oct. 2017), https://perma.cc/2CCD-SPA2.
 Id. at 8.
 Id. at 11.
 Id. at 12.
 Media, Entertainment and Arts Alliance (MEAA), MEAA Media Submission to the Senate Legal and Constitutional Affairs References Committee’s Inquiry into the Adequacy of Existing Offences in the Commonwealth Criminal Code and of State and Territory Criminal Laws to Capture Cyberbullying 5 (Submission 28, Dec. 21, 2017), https://perma.cc/VS3W-QBR6.
 Id. at 7; Women in Media, Submission 26, supra note 25, at 6.
 Criminal Code Act 1995 (Cth) s 474.17A(1).
 Id. s 474.17A(4).
 Id. s 18C(2)(a).
 Id. s 18D(c)(ii).
 Human Rights Legislation Amendment Act 2017 (Cth), https://perma.cc/7G4N-55SF; Ashlynne McGhee, 18C: Proposed Changes to Racial Discrimination Act Defeated in Senate, ABC News (Mar. 30, 2017), https://perma.cc/RQ4Y-E8N2.
 See Kelly Buchanan, Australia: Legislation Imposing Penalties for Publishing Intimate Images without Consent Comes into Force, Global Legal Monitor (Sept. 21, 2018),https://www.loc.gov/law/foreign-news/article/australia-legislation-imposing-penalties-for-publishing-intimate-images-without-consent-comes-into-force/.
 How to Report Image-Based Abuse to the eSafety Commissioner, Office of the eSafety Commissioner, https://perma.cc/9U4H-3X4C?type=image; Enhancing Online Safety Act 2015 (Cth) s9B (definition of intimate image).
 Enhancing Online Safety Act 2015 (Cth) s 3. The full provisions are contained in part 5A of the Act.
 Lynelle Briggs, Report of the Statutory Review of the Enhancing Online Safety Act 2015 and the Review of Schedules 5 and 7 to the Broadcasting Services Act 1992 (Online Content Scheme) 32-33 (Oct. 2018), https://perma.cc/KG82-PA66.
 Id. at 42.
 Senate Legal and Constitutional Affairs References Committee, supra note 13, at 7-8.
 Id. s 131A.
 Crimes Act 1900 (NSW) s 93Z.
 Criminal Code Compilation Act 1913 (WA) s 77.
 Id. s 78.
 Id. s 80A.
 Press Release, NSW Department of Justice, Review Recommends Defamation Cyber-Age Reboot (June 7, 2018), https://perma.cc/AC28-7ZP8; Michael Douglas, Protecting Google from Defamation Is Worth Seriously Considering, Gizmodo (June 19, 2018), https://perma.cc/JJL7-FTV3.
 King v R (1876) 2 VLR 17.
 Craig Burgess, Criminal Defamation in Australia: Time to Go or Stay?, 20(1) Murdoch U. L. Rev. 1, 3 (2013), https://perma.cc/L4BN-WKSX; Mark Pearson, Rare Criminal Defamation Charge in Queensland - #MLGriff, Journlaw (June 5, 2019), https://perma.cc/F3PH-UD8S.
Last Updated: 12/30/2020