South Australia Defamation (Miscellaneous) Amendment Bill 2024 A Bill For An Act to amend the Defamation Act 2005. Contents Part 1—Preliminary 1 Short title 2 Commencement Part 2—Amendment of Defamation Act 2005 3 Amendment of section 4—Interpretation 4 Insertion of section 21A 21A Orders for preliminary discovery about posters of digital matter 5 Amendment of section 25—Defence of absolute privilege 6 Insertion of section 37A 37A Orders against non-party digital intermediaries concerning defamatory digital matter Schedule 1—Transitional provisions 1 Absolute privilege amendments 2 Preliminary discovery or non-party digital intermediary order amendments The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Defamation (Miscellaneous) Amendment Act 2024. 2—Commencement This Act comes into operation on a day to be fixed by proclamation. Part 2—Amendment of Defamation Act 2005 3—Amendment of section 4—Interpretation (1) Section 4—before the definition of applicable period insert: access prevention step, in relation to the publication of digital matter, means a step— (a) to remove the matter; or (b) to block, disable or otherwise prevent access, whether by some or all persons, to the matter; (2) Section 4—after the definition of country insert: 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— There may be more than 1 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; (3) Section 4—after the definition of offer to make amends insert: 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— (a) to access or connect to the internet; or (b) to use the internet to do 1 or more of the following: (i) send or receive content; (ii) store content; (iii) index content; (iv) search for content; (v) share content; (vi) interact with other persons; Examples of an 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. (4) Section 4—after the definition of parliamentary body insert: 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 1 or more other persons; 4—Insertion of section 21A After section 21 insert: 21A—Orders for preliminary discovery about posters of digital matter (1) This section applies if the court procedure law for a court allows a person seeking to bring defamation proceedings for the publication of digital matter to obtain an order for, or in the nature of, preliminary discovery for either or both of the following purposes: (a) to obtain information to assist in identifying the posters of the matter; (b) to obtain information to assist in locating physical or digital addresses for the posters of the matter to allow concerns notices to be given to them or defamation proceedings against them to be commenced. (2) Despite anything to the contrary in the court procedure law for a court, the court must take the following matters into account before making an order mentioned in subsection (1): (a) the objects of this Act; (b) privacy, safety or other public interest considerations that may arise if the order is made. Example for paragraph (b)— Evidence suggesting the poster of digital matter is in fear of domestic violence from the person seeking an order to obtain the poster's address. (3) This section does not limit the matters the court may take into account before making an order mentioned in subsection (1). (4) In this section— court procedure law for a court means— (a) rules of court for the court; or (b) an Act or other legislation that regulates the practice or procedure of the court; or (c) the general law concerning the inherent or implied jurisdiction or powers of the court. 5—Amendment of section 25—Defence of absolute privilege (1) Section 25(2)—after paragraph (b) insert: (ba) the matter is published to a person who, at the time of the publication, is an official of a police force or service of an Australian jurisdiction and it is published to the official while the official is acting in an official capacity; or (2) Section 25—after subsection (2) insert: (3) In this section— official of a police force or service of an Australian jurisdiction means— (a) an officer, employee or member of staff of the police force or service; or (b) another person engaged to act for or on behalf of the police force or service. 6—Insertion of section 37A After section 37 insert: 37A—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. Schedule 1—Transitional provisions 1—Absolute privilege amendments (1) This clause applies to the amendments made to the Defamation Act 2005 by this Act about the defence of absolute privilege in its application to publications to officials of police forces or services of Australian jurisdictions (the absolute privilege amendments). (2) The absolute privilege amendments apply to a post‑commencement action. (3) The existing law continues to apply despite the absolute privilege amendments to a pre‑commencement action. (4) In this clause— existing law, in relation to the absolute privilege amendments, means the law that would have applied if the amendments had not been enacted; post-commencement action, in relation to the absolute privilege amendments, means a cause of action for the publication of defamatory matter accruing after the commencement of the amendments; pre-commencement action, in relation to the absolute privilege amendments, means a cause of action for the publication of defamatory matter accruing before the commencement of the amendments. 2—Preliminary discovery or non-party digital intermediary order amendments (1) This clause applies to the amendments made to the Defamation Act 2005 by this Act about courts making orders (the preliminary discovery or non‑party digital intermediary order amendments)— (a) for, or in the nature of, preliminary discovery; or (b) to take steps— (i) to prevent or limit the continued publication or republication of defamatory matter; or (ii) to comply with, or otherwise give effect to, judgments, injunctions or other court orders. (2) Except as provided by subclause (3)(b), the preliminary discovery or non‑party digital intermediary order amendments apply to the making of an order after the commencement of the amendments regardless of whether the proceedings in which they are made— (a) involve a pre‑commencement action or post‑commencement action; or (b) were commenced before or after the commencement of the amendments. (3) The existing law continues to apply despite the preliminary discovery or non‑party digital intermediary order amendments— (a) to an order made before the commencement of the amendments; or (b) to the variation or revocation of an order made before the commencement of the amendments. (4) In this clause— existing law, in relation to the preliminary discovery or non‑party digital intermediary order amendments, means the law that would have applied if the amendments had not been enacted; post-commencement action, in relation to the preliminary discovery or non‑party digital intermediary order amendments, means a cause of action for the publication of defamatory matter accruing after the commencement of the amendments; pre-commencement action, in relation to the preliminary discovery or non‑party digital intermediary order amendments, means a cause of action for the publication of defamatory matter accruing before the commencement of the amendments.