The Bill creates, defines and links several core concepts that determine who benefits, who pays, and what procedural steps are available.

• Digital intermediary (sch 5 insertion). The Bill defines a digital intermediary, in relation to the publication of digital matter, as “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” (sch 5). The note in the definition acknowledges multiple intermediaries may be involved. This is the central status for the new statutory exemptions (ss 10C, 10D) and the digital intermediary defence (s 31A).

• Digital matter and online service (sch 5). “Digital matter” means matter published in electronic form by means of an “online service.” “Online service” is broadly defined to include any service enabling a person to use the internet, with examples covering access, storage, indexing, searching, sharing or interacting (sch 5). The examples include social media platforms, forums administered by a person using a social media facility, and websites enabling knowledge sharing,indicating a wide sweep for “online service”.

• Access prevention step (sch 5). This is defined as a step to remove the matter, or to block, disable or otherwise prevent access to it, whether for some or all persons. Access prevention steps are both actionable relief the court can order (s 39A) and the remedial measure whose taking can feed into the s 31A defence for digital intermediaries and into offers to make amends under s 15 (s 6).

• Caching, conduit and storage services (s 10C). The Bill treats intermediaries differently depending on their principal function. A “caching service” provides automatic, intermediate and temporary storage to make transmission more efficient; a “conduit service” enables users to access or use networks or to send/receive data; a “storage service” (other than caching) enables users to store content remotely (s 10C(4)). A person who proves their role was limited to providing one or more of those services, and who did not initiate, select recipients, encourage the poster, edit or promote the matter, is exempt from liability for defamation for the publication (s 10C(1)(a)-(c)).

• Search engine provider exemption (s 10D). A search engine provider is not liable for defamatory digital matter comprising search results if its role was limited to providing an automated process for the user to generate results, or for matter to which results hyperlink, provided the results are not promoted or prioritised because of payment or other benefit to the provider (s 10D(1)-(2)). The Bill defines “search result” narrowly as limited to title, hyperlink, extract or image (s 10D(4)).

• Procedural mechanisms: early determination, discovery and third‑party orders. Section 10E requires the judicial officer to determine whether a defendant has a digital intermediary exemption as soon as practicable before trial, with factors to weigh for postponement and a power to determine on pleadings where pleaded particulars suffice. Section 23A constrains preliminary discovery orders seeking to identify posters of digital matter by requiring courts to take into account the objects of the Act and privacy/safety/public interest considerations. Section 39A gives courts express power to order non‑party digital intermediaries to take access prevention or other steps to prevent continued publication or to give effect to judgments and injunctions, with procedural safeguards including an opportunity to be heard and a power for temporary orders without prior hearing where necessary (ss 23A; 39A).

• Digital intermediary defence and complaints mechanism (s 31A). A defendant who proves they were a digital intermediary and had an accessible complaints mechanism has a statutory defence to publication of defamatory digital matter, subject to the intermediary taking reasonable access prevention steps when a written complaint is given. The written complaint must specify the plaintiff’s name, the matter and where located, and that the plaintiff considers it defamatory, and must be given via the accessible complaints mechanism or another manner permitted by s 44 (s 31A(1)-(3)). The defence is defeated only if the plaintiff proves malice (s 31A(4)).

• Interaction with criminal defamation (Criminal Code s 365 amendments). The Criminal Code is amended to add that a person does not commit criminal defamation if they have a lawful excuse, and to make relevant whether the accused would be exempt or have a digital intermediary defence under the Defamation Act (s 365(3A), definitions inserted). The Bill also adjusts definitions of relevant defences and inserts transitional treatment of proceedings (Criminal Code ch 113 s 768).

These core concepts are central to who bears legal risk and what steps regulated parties must take to qualify for exemptions and defences. Each is given statutory form and linked to specific procedural obligations and relief in the Bill’s text.

The Bill affects several discrete groups by changing civil liability rules, procedural remedies and criminal liability considerations. The text identifies the following categories and the ways they are affected.

• Digital intermediaries. The most immediate subjects are persons who “provide or administer the online service by means of which [digital matter] is published” (sch 5). This covers providers of caching, conduit and storage services (s 10C), search engine providers (s 10D), and platforms that operate online services more generally. The Bill creates an on‑claim exemption for certain intermediary roles (ss 10C, 10D) and a statutory defence for intermediaries if they have an accessible complaints mechanism and take reasonable access prevention steps when properly notified (s 31A). All digital intermediaries might also be the target of post‑judgment or interim orders to take access prevention steps even if not parties (s 39A).

• Search engine providers and platforms that prioritise/promote results. Search engine providers receive a special exemption (s 10D) but the exemption does not apply where results or linked content are promoted or prioritised due to payment or other benefit to the provider (s 10D(2)). Platforms or search providers that run paid prioritisation or advertising systems are therefore treated differently by the Bill’s text.

• Authors, originators and posters of digital matter. The Bill’s definition of digital intermediary excludes “an author, originator or poster of the matter” (sch 5). Those persons remain potential subjects of defamation liability in the usual way and are not made eligible for the intermediary exemptions simply by providing or using an online service. However, the Bill’s note in s 31A(5) allows a defendant who would otherwise be a digital intermediary to remain able to rely on the s 31A defence even if they took limited steps to detect, identify or remove/disable content, so long as their editorial or moderating role was limited to those steps.

• Plaintiffs (alleged defamation victims). Plaintiffs who bring claims for defamatory digital matter receive a statutory route for obtaining discovery and contact details of posters, but the court must take into account privacy, safety or other public interest considerations before making orders for preliminary discovery aimed at identifying posters (s 23A). Plaintiffs are also required to notify digital intermediaries by written complaint (as specified in s 31A(3)) if they wish an intermediary to have the opportunity to take access prevention steps and thereby enable the s 31A defence to arise or be defeated. The scope of offers to make amends is altered to permit an offer to take access prevention steps (s 15 amendments in s 6).

• Courts and judicial officers. The Bill imposes active duties on courts to determine digital intermediary exemption issues early (s 10E), to weigh the objects of the Act and privacy/safety in preliminary discovery applications (s 23A), and to manage orders against non‑party intermediaries (s 39A). Judges may dismiss proceedings if a digital intermediary exemption is established (s 10E(1)(c)) and may make orders requiring access prevention steps to be taken by non‑party intermediaries (s 39A(2)). Courts are given a discretion to make temporary orders without hearing non‑parties where expeditious action is needed (s 39A(5)).

• Police forces and officials. Section 27 is amended to extend absolute privilege to matter published to a person who is an official of a police force or service of an Australian jurisdiction, provided it is published while that official is acting in an official capacity (s 27(2)(ba); definition of “official” added).

• Defence and criminal law actors. The Criminal Code amendments alter how criminal defamation is assessed by inserting a lawful excuse provision and requiring regard to whether a defendant would be exempt or have a digital intermediary defence in civil proceedings (Criminal Code s 365(3A); definitions in s 365(8) as inserted). Prosecutors and defence practitioners will therefore need to consider the civil law exemptions and defences in criminal prosecutions for defamatory publications.

• Parties who rely on electronic service and complaints channels. The Bill broadens permitted means of giving and serving notices and documents to include email, messaging or other electronic communications to an electronic address or location indicated by the recipient (s 44 amendments). That affects how plaintiffs, defendants and intermediaries must provide or accept legal correspondence.

• Service providers who host forums, cloud storage or caching. Examples used in the Bill (sch 5, s 10C examples) indicate that internet service providers, cloud storage services, content delivery networks and social media platforms can all be impacted depending on their functions and the extent of their editorial or promotional involvement.

Collectively, these groups face shifted legal risk and procedural expectations. The Bill’s text specifies who pays in the sense of who may be sued or ordered to act (authors/posters; intermediaries; non‑party intermediaries ordered under s 39A) and who decides (courts exercising early determination under s 10E, courts considering discovery under s 23A, courts making orders under s 39A).

The Bill re‑allocates procedural duties and creates statutory rights and defences; the operative duties and rights are set out below with the relevant statutory hooks.

Duties and evidentiary burdens on defendants and intermediaries

• Proof of role and non‑engagement for exemption (s 10C). A digital intermediary who seeks the exemption for caching, conduit or storage services must prove (a) the matter was published using one or more of those services; (b) the intermediary’s role was limited to providing those services; and (c) the intermediary did not initiate publication, select recipients, encourage the poster, edit the content, or promote the matter (s 10C(1)(a)-(c)). The intermediary bears the evidential burden to establish those elements.

• Proof of automated role for search engines (s 10D). A search engine provider must prove its role was limited to providing an automated process for the user to generate results; the exemption does not apply if results are promoted or prioritised because of payment or other benefit (s 10D(1)-(2)). The provider must also address whether the results or linked matter were in fact promoted or prioritised.

• Accessible complaints mechanism and reasonable steps (s 31A). To access the s 31A defence, a defendant must prove they were a digital intermediary and that they had an “accessible complaints mechanism” at the time of publication (s 31A(1)(a)-(b); definitions and examples of accessible complaints mechanism in s 31A(6)). Where a plaintiff gives a written complaint, the intermediary must have taken “reasonable access prevention steps, if steps were available,” in relation to the publication, either before the complaint or within seven days after the complaint (s 31A(1)(c)). Subsection (2) states how “reasonable” is to be assessed, allowing steps by another person to relieve the defendant if it was reasonable not to act because of those other steps.

• Requirement for written complaint content and channels (s 31A(3)). The plaintiff’s written complaint must contain sufficient particulars to let a reasonable person be aware of the plaintiff’s name, the matter and where located, and that the plaintiff considered the matter defamatory, and must be given using the accessible complaints mechanism or other methods permitted by s 44 (s 31A(3)).

Procedural duties for courts

• Early determination (s 10E). The judicial officer must determine whether a defendant has a digital intermediary exemption as soon as practicable before trial, unless there are good reasons to postpone (s 10E(1)(b)). The court may dismiss proceedings if the exemption is established (s 10E(1)(c)). Factors relevant to postponement include costs, court resources, technical or scientific issues, and whether the exemption is linked to other trial issues; the court may determine on pleadings if pleaded particulars suffice (s 10E(2)).

• Considerations before preliminary discovery (s 23A). If court procedure law permits preliminary discovery to identify posters, the court must take into account the objects of the Act and privacy, safety or other public interest considerations before making such orders (s 23A(2)). The court retains discretion to consider other matters (s 23A(3)).

• Orders against non‑party intermediaries (s 39A). After judgment, or where a court has granted a temporary or final injunction preventing republication, the court may order a non‑party digital intermediary to take access prevention or other steps to prevent continued publication or to comply with court orders (s 39A(1)-(2)). The court must give the intermediary an opportunity to be heard except for temporary orders made expeditiously where necessary (s 39A(4)-(5)). A court may make orders under this section even if the intermediary is not liable for defamation, including because of a defence (s 39A(6)).

Rights of plaintiffs and defendants

• Defence protections (ss 10C; 10D; 31A). Defendants who satisfy s 10C or s 10D elements are not liable for defamation (s 10C(1), s 10D(1)). Digital intermediaries that meet s 31A threshold and complaint/timeframe requirements may assert a statutory defence; the defence is defeated only if the plaintiff proves malice (s 31A(4)).

• Procedural rights to seek discovery (s 23A). Plaintiffs may seek preliminary discovery orders to identify posters or locate addresses for service or concerns notices, subject to court balancing of Act objects and privacy/safety interests (s 23A(1)-(2)).

• Rights to electronic service and complaint channels (s 44; s 31A examples). Parties may rely on electronic addresses or locations indicated by recipients for service of documents and for giving complaints; the Bill provides examples including email addresses, direct messaging addresses and forms on a website (s 44(1)(a)(iv)-(b)(iii) and examples).

Criminal law consequences and rights

• Lawful excuse and consideration of civil defences (Criminal Code s 365). The Criminal Code now provides that a person does not commit criminal defamation if they have a lawful excuse (s 365(1A) renumbered to s 365(2) as inserted). The Code also makes relevant whether, in civil proceedings, the accused would be exempt or have the digital intermediary defence (s 365(3A)). The definitions (inserted) of “digital intermediary defence” and “relevant digital intermediary provision” link the civil statutory defences to criminal assessments.

Transitional and temporal rights

• Temporal application rules. The Bill sets out which amendments apply to pre- and post‑commencement actions. Digital intermediary amendments generally apply only to post‑commencement actions, with limited exceptions where multiple causes of action in one proceeding span pre‑ and post‑commencement publications and the post‑commencement action accrued within a year of the earliest pre‑commencement action (s 52). Offer amendments apply to offers made after commencement regardless of publication date (s 53). Preliminary discovery/non‑party digital intermediary order amendments apply to orders made after commencement (s 54). Absolute privilege amendments and document giving/service amendments have their own temporal rules (ss 55-56). Criminal proceedings are dealt with in ch 113 s 768.

The Bill therefore creates evidentiary and procedural duties for intermediaries and courts, and rights for plaintiffs and non‑party intermediaries (including opportunities to be heard) that are tightly linked to the statutory definitions and timeframes in the Bill.

The Bill primarily rebalances civil liability rules and creates procedures for injunctive and access‑prevention relief; it does not create new monetary penalties within the Act itself but changes the enforcement landscape by altering when intermediaries can be held liable and by expanding court powers to require action by non‑parties. The operative enforcement mechanisms and sanctions in the Bill’s text are as follows.

Civil enforcement mechanisms and powers

• Dismissal for established exemptions (s 10E(1)(c)). If the judicial officer determines that a defendant has an established digital intermediary exemption under s 10C or s 10D, the judicial officer may dismiss the proceedings. This is a procedural sanction that removes civil liability where the statutory exemption is proved.

• Injunctive relief and access prevention orders against parties (existing Act powers) and non‑party intermediaries (s 39A). The Bill expressly allows courts to order non‑party digital intermediaries to take access prevention steps or other steps necessary to prevent or limit continued publication or to give effect to a judgment or injunction obtained against a defendant (s 39A(2)). The court may require steps applying to all or some users of an online service (s 39A(3)). The court must give the intermediary an opportunity to be heard before making such an order, except that temporary orders may be made without prior hearing where expeditious action is necessary (s 39A(4)-(5)). Section 39A(6) expressly allows a court to make such an order even if the intermediary is not liable for defamation or has a defence.

• Offers to make amends and access prevention steps (s 15 as amended). The amended s 15 allows an offer to make amends, where the matter is digital, to include an offer to take access prevention steps in lieu or in addition to the usual apology, correction or retraction remedies (s 15(1A)(b) as amended; s 15(1B)). Offers to make amends remain a statutory route for limiting costs and other consequences in civil defamation actions.

• Preliminary discovery (s 23A). The Bill leaves preliminary discovery powers in the court procedure law but requires courts to consider the Act’s objects and privacy/safety/public interest considerations before making orders to identify posters of digital matter (s 23A(2)). This shapes enforcement by affecting plaintiffs’ ability to identify respondents for proceedings.

Criminal enforcement changes

• Lawful excuse and civil defence relevance (Criminal Code s 365). The Criminal Code no longer automatically treats the publication as criminal without excuse; the amendments insert that a person does not commit criminal defamation if they have a lawful excuse (s 365(1A) renumbered s 365(2)). Further, if the accused would, in civil proceedings, be exempt under the digital intermediary provisions or have the digital intermediary defence, those circumstances are relevant to criminal liability (s 365(3A)); definitions of “digital intermediary defence” and “relevant digital intermediary provision” are inserted. The Bill thereby introduces a route by which civil statutory protections inform criminal assessments.

Enforcement burdens and procedural protections

• Opportunity to be heard for non‑party intermediaries (s 39A(4)). Before making final orders against non‑party intermediaries, courts must give them an opportunity to be heard. The Bill balances enforcement reach with procedural fairness safeguards, while allowing temporary ex parte orders where there is an urgent need (s 39A(5)).

• Malice requirement to defeat s 31A defence (s 31A(4)). The Bill places the onus on plaintiffs to prove malice if they aim to defeat the s 31A defence of a digital intermediary who has complied with complaint mechanisms and reasonable access prevention steps. That raises the evidentiary threshold for plaintiffs seeking to impose civil liability where intermediaries have followed the statute’s procedures.

• Early determination to conserve costs (s 10E). Section 10E directs courts to determine digital intermediary exemption issues early and permits determination on pleadings, which affects enforcement by enabling an early exit from litigation and potential cost savings or shifts.

The Bill does not prescribe new fines, criminal penalties or civil damage schedules beyond the existing remedies under the Defamation Act and the Criminal Code; instead, it changes who can be sued, when proceedings can be dismissed, and when courts can require non‑parties to take steps to prevent access, while linking civil statutory protections into criminal liability assessments (see ss 10C-10E, 31A, 39A and Criminal Code s 365 amendments).

The Bill explicitly cross‑references and preserves interaction with existing court procedure law, codes of conduct, orders of courts and tribunals, and state/territory laws, and it establishes transitional rules to determine temporal interaction. The relevant textual interactions in the Bill are as follows.

• Interaction with court procedure law (s 23A). Section 23A applies “if the court procedure law for a court allows a person … to obtain an order for, or in the nature of, preliminary discovery,” and then requires the court, despite anything contrary in that law, to take the objects of the Defamation Act and privacy/safety/public interest considerations into account before making such orders (s 23A(1)-(2)). The Bill thus overlays a statutory consideration onto the existing discovery regime, and expressly contemplates that the court procedure law,rules of court, practice legislation or the general law,may otherwise permit preliminary discovery (s 23A(4) definition).

• Compliance with other laws and orders (s 10C(2)). Section 10C(2) explicitly excludes action taken because required by or under an Australian jurisdiction law or an Australian court or tribunal order from the non‑promotion/non‑editing limitation in s 10C(1)(c). The example given is compliance with a code of conduct or other regulatory document required by law. That preserves obligations under other regulatory schemes and orders, and prevents an intermediary from relying on the s 10C non‑liability element where it acted to comply with such other laws or orders.

• Interaction between civil defences and criminal law (Criminal Code s 365 amendments). The Criminal Code now directs that, in assessing criminal defamation, regard must be had to whether the accused person would have been exempt from civil liability under s 10C or s 10D or would have had the digital intermediary defence under s 31A (Criminal Code s 365(3A); definitions inserted). The Bill explicitly ties civil statutory positions into criminal law assessment.

• Service and other procedural statutes (s 44). Section 44 amendments change how notices and documents under the Defamation Act may be given or served, allowing electronic communication to an electronic address or location indicated by the recipient, and supply examples such as email addresses and forms on a website (s 44(1)(a)(iv)-(b)(iii) and examples). Where other statutes prescribe service methods, those statutes will interact with this permissive route; the Bill does not displace other service regimes but provides an additional authorised route within the Defamation Act’s operation.

• Transitional interactions (Pt 6 Div 3). The Bill contains a set of transitional provisions that specify which amendments apply to pre‑ or post‑commencement causes of action and orders (ss 51-56). Notably, the digital intermediary amendments generally apply to post‑commencement actions but the existing law continues to apply to pre‑commencement actions and to some post‑commencement actions that sit in proceedings alongside earlier causes of action (s 52). Offer amendments apply to offers made after commencement regardless of publication date (s 53). Preliminary discovery or non‑party intermediary order amendments apply to orders made after commencement regardless of whether proceedings started pre‑ or post‑commencement, with an exception for pre‑commencement orders’ variation or revocation (s 54). Absolute privilege amendments apply only to post‑commencement actions (s 55). These transitional rules govern temporal interplay between the new provisions and existing causes of action, offers, orders and proceedings.

• Reference to Australian jurisdictions and courts (multiple sections). The Bill repeatedly frames exceptions and duties in terms of “a law of an Australian jurisdiction” and “an order of an Australian court or Australian tribunal” (s 10C(2) example; s 27 amendment refers to “police force or service of an Australian jurisdiction”), preserving cross‑jurisdictional obligations and providing scope for interaction with other state, territory or federal legal instruments.

• Preservation of other court powers (s 10E(3); s 39A(7)). The Bill expressly states that sections 10E and 39A do not limit other powers of a judicial officer or the court to dismiss proceedings or grant injunctions and other orders, respectively. That signals that the Bill is intended to sit alongside existing equitable and statutory powers.

The Bill therefore introduces new statutory duties and defences while explicitly preserving compliance with other statutes, court orders and the general law, and it sets out transitional rules to determine which provisions apply to ongoing or historic matters (see ss 10C(2), 23A, 31A, 39A, 44 and Pt 6 Div 3).

The Bill itself is the amending instrument; the text of the Bill identifies the clauses and sections inserted or modified within the Defamation Act 2005 and the Criminal Code. The Bill’s key amendments are the following (references are to the Bill’s clause and section insertions/amendments):

• Preliminary and commencement (Part 1). Short title and commencement set out at ss 1-2; the Act commences seven days after assent (s 2).

• Defamation Act 2005 amendments (Part 2, ss 3-18).

  • s 3: declares the Defamation Act 2005 is amended by this Part.
  • s 4: amends s 4(2) of the principal Act by omission (the Bill records omission but does not include the pre‑existing text in the Bill).
  • s 5: inserts a new Part 2, Division 2A titled “Exemptions from liability for digital intermediaries,” and adds new sections:
    • s 10C: “Exemption for digital intermediaries providing caching services, conduit services or storage services.” Sets out elements of the exemption, definitions of caching, conduit and storage services, and a proviso that subsection (1)(c) does not apply to action required by law or court/tribunal order (s 10C(2)).
    • s 10D: “Exemption for search engine providers.” Defines search engine, search engine provider, and search result; exempts providers where role limited to automated processes; excludes exemption where results are promoted or prioritised because of payment or other benefit (s 10D(1)-(4)).
    • s 10E: “Early determination of digital intermediary exemptions.” Requires judicial officers to determine whether a defendant has a digital intermediary exemption as soon as practicable before trial, permits dismissal where established, and lists factors relevant to postponement, including cost and technical issues (s 10E).
  • s 6: amends s 15 (Content of offer to make amends) so that where matter is digital the offer may include an offer to take access prevention steps; inserts s 15(1B) clarifying that access prevention steps may be made instead of, or in addition to, an offer to publish an apology or correction (amendment to s 15).
  • s 7: inserts new s 23A “Orders for preliminary discovery about posters of digital matter,” requiring courts to consider Act objects and privacy/safety/public interest considerations before making discovery orders aimed at identifying posters (s 23A).
  • s 8: amends s 27 (Defence of absolute privilege) by inserting paragraph (ba) extending absolute privilege to publications to police officials acting in an official capacity and adding a definition of “official” within s 27(3).
  • s 9: inserts new s 31A “Defence for publications involving digital intermediaries,” establishing the accessible complaints mechanism requirement and the seven‑day rule for taking reasonable access prevention steps after a written complaint; defines accessible complaints mechanism and clarifies malice defeats the defence (s 31A).
  • s 10: inserts new s 39A “Orders against non‑party digital intermediaries concerning defamatory digital matter,” authorising courts to order non‑party intermediaries to take steps to prevent continued publication or give effect to judgments, while providing procedural safeguards for opportunities to be heard and temporary orders (s 39A).
  • s 11: amends s 44 (Giving of notices and other documents) to allow documents to be given or served by email, messaging or other electronic communication to an electronic address or location indicated by the person (s 44(1)(a)(iv) and s 44(1)(b)(iii)), including examples and clarifying language about “given to or be” in s 44(2).
  • ss 12-16: create a new Part 6 containing transitional provisions. Among these:
    • s 13: amends s 49 heading to “Causes of action for publication of defamatory matter.”
    • s 15: amends s 50 heading to “Publication of defamatory matter after commencement.”
    • s 16: inserts Division 3 (ss 51-56), containing definitions for transitional provisions and clauses allocating temporal application of the new amendments, specifically s 52 (digital intermediary amendments), s 53 (offer amendments), s 54 (preliminary discovery or non‑party order amendments), s 55 (absolute privilege amendments) and s 56 (document giving or service amendments).
  • s 17: amends schedule heading numbers.
  • s 18: inserts new dictionary terms into Schedule 5: “access prevention step,” “digital intermediary,” “digital matter,” “online service,” and “poster.” The schedule includes examples clarifying those definitions.

• Criminal Code amendments (Part 3, ss 19-21).

  • s 19: notes the Code is amended.
  • s 20: amends s 365 (Criminal defamation):
    • removes an earlier phrase “without lawful excuse,” and inserts a new lawful excuse provision so that a person does not commit the offence if they have a lawful excuse (new s 365(1A) renumbered subsequently).
    • inserts s 365(3A) to make relevant whether, in civil proceedings, the accused would be exempt under the Defamation Act’s digital intermediary provisions or would have a digital intermediary defence.
    • inserts definitions into s 365(8) including “digital intermediary defence” (the defence in Defamation Act s 31A) and “relevant digital intermediary provision” (Defamation Act ss 10C or 10D), and amends the definition of “relevant defence” to exclude statutory defences of failure to accept a reasonable offer, justification, and the digital intermediary defence (note change in list).
  • s 21: inserts new Part 9, ch 113 s 768 containing transitional provision stipulating that former s 365 applies to defamatory matter published before commencement, new s 365 applies after commencement, and that former section continues to apply despite s 11.

• Commencement. The Act commences on the day seven days after assent (s 2).

The Bill therefore effects targeted insertions and amendments to both Acts, with particular attention to definitions, exemptions, procedural powers and transitional application. The precise text of each inserted or amended section in the Bill is the authoritative source for these amendments.

The Bill text does not record any litigation history. It is an amending Bill that sets out substantive and procedural changes to the Defamation Act 2005 and the Criminal Code; it contains neither case law citations nor a legislative history of judicial interpretation. The Bill does, however, create new statutory paths likely to generate litigation about their interpretation once in force; the Bill anticipates procedural disputes and provides mechanisms that will shape litigation practice:

• Early determination and dismissal (s 10E). The Bill directs judicial officers to determine digital intermediary exemption issues “as soon as practicable before the trial” and allows dismissal of proceedings where the exemption is established. That mechanism creates a route for interlocutory applications and potential early termination of claims, which will in practice lead to litigation about the sufficiency of pleadings and the admissibility of evidence at an interlocutory stage.

• Pleadings and determination on pleadings (s 10E(2)(b)). The court may decide the exemption on the pleadings where pleaded particulars are sufficient. That anticipates disputes over the adequacy of particulars. Future litigation will test what constitutes sufficient pleaded particulars to establish an exemption without further evidence.

• Discovery and privacy balancing (s 23A). The Bill requires courts to consider privacy, safety or other public interest considerations before making preliminary discovery orders aimed at identifying posters. The text anticipates and authorises balancing exercises that will give rise to litigation over what facts suffice to overcome privacy or safety considerations.

• Orders against non‑party intermediaries (s 39A). The Bill expressly authorises orders against non‑party digital intermediaries,including temporary ex parte orders,and states that such orders may be made even where the intermediary is not liable for defamation. That new power will likely be the subject of future challenges and appellate guidance on the scope and limits of the court’s authority to order non‑parties to remove or disable content.

• Malice as the route to defeating the s 31A defence (s 31A(4)). The Bill places the onus on plaintiffs to prove malice to defeat the intermediary defence. Litigation will be required to develop standards and evidence admissible to prove malice in the digital intermediary context.

• Criminal proceedings: interplay with civil defences (Criminal Code s 365(3A)). The Code now requires courts to have regard to whether the accused would have been exempt from civil liability or would have had the digital intermediary defence. That raises questions about how civil statutory positions will inform criminal prosecutions and the evidentiary pathways for such proof.

Because the Bill itself provides transitional rules (Pt 6 Div 3; ch 113 s 768) to govern which amendments apply to pending or new proceedings, courts will also be required to interpret and apply those transitional rules in circumstances where causes of action span the commencement date. Those transitional provisions will be a source of litigation about temporal application.

In short, while the Bill contains no prior litigation history, it creates provisions that will generate litigation on pleading sufficiency, discovery and privacy balancing, the scope of court power over non‑party intermediaries, the meaning of “reasonable” and “accessible” in complaint and prevention contexts, and the civil‑criminal interface in defamatory publications. The Bill’s text anticipates some of these issues by empowering early determinations and specifying evidentiary particulars in certain contexts.

The Bill contains a number of textually evident traps and practical pitfalls for practitioners and parties that arise directly from its wording. These are matters to watch when advising clients or structuring compliance.

• “Digital intermediary” exclusion of authors, originators and posters (sch 5). The definition of “digital intermediary” explicitly excludes authors, originators or posters of the matter. A platform or service provider that also posts content under its own account, or that creates or originates content, will not automatically qualify as a digital intermediary for the exemptions in ss 10C and 10D. The Bill’s note in s 31A(5) allows reliance on the defence despite limited moderating steps in some circumstances, but practitioners should not assume that any entity that touches content is automatically an intermediary for exemption purposes (sch 5; s 31A(5)).

• Principal function tests for caching, conduit, storage and search (s 10C; s 10D). The exemptions require that the intermediary’s principal function be caching, conduit or storage, or in the search engine case that the role be limited to providing an automated process. The word “principal” introduces a qualitative test; services that combine functions (for example, a platform that stores content but also indexes or promotes it) may not meet the “principal function” threshold. The Bill contains examples but not exhaustive tests; factual disputes over the “principal function” or whether the provider “promoted” material (s 10D(2)) are foreseeable.

• Promotion/prioritisation carve‑out for search providers (s 10D(2)). The exemption for search engines does not apply where results are promoted or prioritised because of a payment or other benefit. Practically, this means search providers running paid placement or advertising programs may be excluded from the exemption for the promoted results. Providers must be able to segregate and demonstrate which results are purely automated/organic and which are promoted.

• “Did not promote” and other negative proofs (s 10C(1)(c)). The caching/conduit/storage exemption requires proof that the intermediary did not promote or edit the content, did not initiate steps to publish, did not select recipients, nor encourage the poster. These are negative facts; evidence and recordkeeping may be necessary to show absence of promotion or editorialisation. The Bill exempts action required by law, but intermediaries taking action to comply with a regulatory code might lose the benefit of a non‑promotion claim if their actions otherwise fall within the excluded conduct (s 10C(2)).

• The seven‑day rule and “reasonable access prevention steps” (s 31A(1)(c)-(2)). If a written complaint is given, the intermediary must take reasonable access prevention steps, if steps were available, either before the complaint or within seven days after the complaint. The Bill leaves “reasonable” contextual and makes it relative to the defendant’s circumstances and steps taken by other persons. Determining what steps are “available” in a given technical or jurisdictional context could be contested. Recordkeeping showing the time, content and response to complaints will be important to prove compliance.

• Written complaint particulars and acceptable channels (s 31A(3)). A written complaint must include the plaintiff’s name, the matter and its location, and that the plaintiff considers the matter defamatory, and must be given via an accessible complaints mechanism or another method permitted by s 44. Complaints that omit required particulars may be ineffective to trigger the seven‑day window and the intermediary defence; practitioners should ensure complaint templates capture the statutory requirements and that intermediaries publish accessible mechanisms.

• Early determination, pleadings sufficiency and cost trade‑offs (s 10E). Section 10E requires early determination unless good reasons warrant postponement. The Bill lists factors relevant to postponement including cost and technical issues. Parties and courts will need to weigh the cost of early interlocutory proof against trial management. Plaintiffs may be vulnerable to early dismissal if pleadings do not adequately address intermediary exceptions; defendants must be ready to apply early. Pleadings practice will require new attention.

• Orders against non‑party intermediaries even where not liable (s 39A(6)). The court may order a non‑party intermediary to take access prevention steps even if the intermediary is not liable for defamation. This means intermediaries may be subject to injunctive relief without having been found civilly liable. Procedural protections (opportunity to be heard) exist but temporary ex parte orders are permissible where expedient (s 39A(4)-(5)). Intermediaries should be prepared to respond quickly to court process.

• Service via electronic addresses, and where addresses can be indicated (s 44). The Bill permits service to an electronic address or location “indicated by the person.” The examples include email addresses visible on a social media profile and forms on a website. Parties should ensure that the addresses they “indicate” are monitored and that intermediaries have clear contact points; conversely, plaintiffs should verify the accuracy of indicated addresses before relying on electronic service.

• Transitional timing traps (Pt 6 Div 3). The digital intermediary exemptions generally apply to post‑commencement actions (s 52(2)), but exceptions apply where a proceeding includes both pre‑ and post‑commencement causes of action and the post‑commencement action accrued within a year of the earliest pre‑commencement cause (s 52(3)). Practitioners must map cause‑of‑action accrual dates carefully to know whether the new rules apply.

• Criminal law interplay (Criminal Code s 365(3A)). The Code’s new requirement to have regard to whether a defendant would be exempt or have a civil digital defence introduces an evidentiary interaction: civil statutory positions may now be relevant to criminal prosecutions. Advisers must consider the civil posture when defending or prosecuting criminal defamation matters.

• Malice as the only route to defeat s 31A (s 31A(4)). The Bill limits grounds to defeat the s 31A defence to proof of malice. Plaintiffs cannot defeat the defence on lesser grounds within the statutory framework; proving malice in a digital context can be challenging and will often require evidence of motive or improper purpose.

These “gotchas” derive directly from the Bill’s wording. The practical consequences are that intermediaries need robust, documented complaints and moderation processes; plaintiffs need to ensure written complaints comply with particulars; parties must understand the temporal application of the reforms; and courts will be managing a new set of interlocutory issues.

The Bill places specific, documentable obligations and procedural features on intermediaries, plaintiffs and legal practitioners. Below is a compliance checklist and practical steps mapped to the relevant provisions.

For digital intermediaries (platforms, ISPs, search engines, cloud providers, caching/CDN services)

1. Document the principal function(s) of your service.

   • Record architecture and terms of service that show whether your service’s “principal function” is caching, conduit, storage, indexing or search (sch 5; s 10C definitions; s 10D definitions).
   • Maintain operational and technical documentation to support claims that your role was limited to caching/conduit/storage or to providing automated search processes (ss 10C; 10D).

2. Publish, maintain and monitor an accessible complaints mechanism.

   • Provide an “accessible complaints mechanism” such as an email address, direct messaging channel, or a web form for complaints (s 31A(6) examples). Ensure it is prominent, functional, and logs submissions with timestamps.
   • Clearly indicate this contact mechanism on the site and in terms of service to qualify as an “electronic address or location indicated” for service (s 44).

3. Create a standardised written complaint intake template that satisfies s 31A(3).

   • Ensure complaints capture: plaintiff name; the matter and where it is located (URL, link, screenshot with metadata); an express statement that the plaintiff considers the matter to be defamatory (s 31A(3)(a)(i)-(iii)).
   • Log when complaints were received and whether they were received using the accessible mechanism.

4. Implement a documented workflow for “reasonable access prevention steps.”

   • Define and document what constitutes “reasonable access prevention steps” in your operational context and by reference to your resources and technical capabilities (s 31A(2)).
   • Ensure your takedown/blocking/disablement processes can be actioned promptly, and record actions taken including date/time and scope (full removal, geo‑block, de‑indexing etc.).
   • Where third parties are expected to act (e.g. a hosting chain), log the steps those third parties have taken to enable reliance on s 31A(2)(b).

5. Segregate paid/promoted content from organic search results and keep records.

   • For search providers, maintain clear distinction and documented audit trails showing which results are promoted due to payment or benefits (s 10D(2)). The exemption does not apply to promoted/prioritised results.

6. Avoid active editorial/selective promotion if you intend to claim s 10C exemption.

   • The s 10C exemption requires that you did not initiate publication, select recipients, encourage the poster, edit content, or promote the matter (s 10C(1)(c)). Maintain policies and logs that evidence non‑engagement.

7. Prepare to respond to court process and temporary ex parte orders.

   • Given s 39A allows courts to order non‑party intermediaries to take steps, prepare a legal response protocol for responding to court orders and for being heard at hearings. Maintain contact details for legal counsel and a compliance team.

For plaintiffs and lawyers

1. Use the precise written complaint form where seeking intermediary action.

   • Provide the written complaint with the statutory particulars when seeking access prevention steps from an intermediary (s 31A(3)). Use the intermediary’s accessible complaints mechanism to trigger the seven‑day response window.

2. When seeking preliminary discovery to identify posters, be ready to address privacy/safety concerns.

   • Under s 23A the court must take into account the objects of the Act and privacy, safety or other public interest considerations. Prepare evidence to justify disclosure, including proportionality and protection measures for disclosed information.

3. Include detailed pleadings addressing intermediary exemptions.

   • Given s 10E allows early determination on pleadings where particulars are sufficient, ensure pleadings address whether the defendant is a digital intermediary and, if seeking to resist an exemption, plead facts that counter the intermediary’s assertions about role and promotion.

4. Consider offers to make amends that include access prevention steps.

   • Where the matter is digital, an offer to make amends may include an offer to take access prevention steps in place of, or in addition to, an apology or correction (s 15 as amended). Use this tactical tool when seeking remedy without protracted litigation.

For courts and registrars

1. Allocate resources for early interlocutory determination.

   • Section 10E requires early determination of digital intermediary exemptions; plan procedural timetables that allow pleadings, technical evidence and potential expert input before trial.

2. Apply s 23A privacy and safety balancing at discovery stage.

   • Create templates and guidance to evaluate claims involving fear of domestic violence or safety concerns before ordering disclosure of posters’ identities.

For compliance and policy teams

1. Train moderation and legal teams on the seven‑day rule and the definition of “access prevention steps.”

   • Ensure staff understand that an intermediary can preserve its defence by taking reasonable steps before or within seven days of a compliant written notification (s 31A(1)(c)).

2. Retain logs and be prepared to produce records in court.

   • Maintain timestamped logs of complaint receipt, actions taken, rationale for decisions (including where content was not removed), and records relating to promoted or paid content placement.

3. Map historical and ongoing publications against the transitional rules.

   • Determine which