ABSTRACT
High-profile defamation proceedings in Australia (Voller) and New Zealand (Wishart) have sought to hold Facebook Page operators liable for third parties’ comments. Relevant to this issue are relatively under-scrutinised, legislative ‘safe harbours’ from liability available to ‘content hosts’ – and capable of covering a wide range of online intermediaries. Given appellate decisions in both proceedings, this article considers each safe harbour’s potential effects on defamation liability arising from publication (subject to innocent dissemination), to assess their prospective impact. It is argued that the combined effect in each jurisdiction risks treating online intermediaries too monolithically and fails to set out a clear path to addressing difficulties with the traditional common law approach to publication coupled with innocent dissemination. The pending judgment of the High Court in Voller as well as defamation law reform processes (specifically the Stage 2 review of Australia’s Model Defamation Provisions) present opportunities to change this balance.
Latu, Alex, Online Intermediaries and Defamation “Safe Harbours” in Australia and New Zealand: Content Hosts, Facebook Comments and Contretemps (June 1, 2021). Originally published in Tort Law Review, 28(2), 61-80 (2021).
First posted 2022-06-08 10:00:30
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