New year new media regulations Whats coming up for media law in 2023

What you need to know

• The Standing Council of Attorneys-General has approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions, which help clarify the liability of internet intermediaries under defamation law. 
• The Federal Court of Australia has amended its rules, creating new limitations for non-party access to court documents.
• The Federal Government has announced plans to legislate new powers for ACMA to combat misinformation and disinformation online. 
• The Attorney-General has announced forthcoming reforms to Australian privacy legislation, with the right to be forgotten and the direct right to sue for breach of privacy being first in consideration.
• The Federal Government has launched its new National Cultural Policy, which comprises a general plan to rejuvenate the Australian creative industries.

Despite only being a month into 2023, a raft of potential changes to media legislation have already been flagged or announced, and we expect there will be more on the horizon in what will be a busy year for media reform. 

Here's a snapshot of what's to come in 2023:

Defamation Reform

What to expect

On 9 December 2022, the Standing Council of Attorneys-General (SCAG) approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions (MDP) to be commenced from 1 January 2024.  This is subject to finalisation in the first half of 2023.  

Part A of the Stage 2 Review includes the following amendments:

• two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including mere conduits, caching and storage services, and search engines (only in relation to organic search results: not autocomplete text);
• a new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B of the two models proposed in the draft provisions);
• a new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online (to assist, e.g. in the circumstance where a post has gone viral and ends up on multiple platforms beyond the original poster's control);
• a requirement that courts consider balancing factors when making preliminary discovery orders (including the original poster's privacy); and
• updates to the mandatory requirements for an offer to make amends for online publications, allowing the publisher to offer to prevent access to the matter in question (rather than publishing a clarification).

SCAG also agreed that Commonwealth officials will consider the desirability of an exemption from section 235(1) of the Online Safety Act 2021 (Cth) for defamation law and report back to the Defamation Law Working Party in the first half of 2023.

Part B of the Stage 2 Review is led by Victoria and considers whether absolute privilege should be extended to cover reports of alleged unlawful conduct to police and other entities including statutory investigative bodies and professional disciplinary bodies.  Consultation on the Part B reforms concluded in 5 October 2022 and submissions are being considered for final agreement of the Part B amendments in 2023. 

Why it matters

The second stage of MDP reforms recognises the need for clarification around liability when defamatory matter is published by third parties via internet intermediaries. There has been significant variation in the relevant case law, which has caused difficulties for intermediaries.

Concerns were raised by various stakeholders in the consultation stage that the Part A proposed drafting did not adequately shift the focus of defamation disputes back to the original poster (rather than the hosting intermediary). It remains to be seen whether any of these concerns will be addressed in the final drafting.

The decision to elect Model B rather than Model A for the protection of internet intermediaries will have some significant consequences: as originally drafted, Model B does not prevent claims against intermediaries where the original poster is identifiable. Model B also requires internet intermediaries to make the decision as to whether content is or is not defamatory: something an internet intermediary is generally not well-placed to determine.

Federal Court Access Rules

What's happened

On 16 December 2022, the Federal Court Legislation Amendment Rules 2022 (Cth) (Amendment Rules) were made, which commenced on 13 January 2023.  

The amendments include:

• new limitations for non-party access to documents;
• updates to references to rules, regulations and the Federal Circuit and Family Court of Australia; 
• clarification in relation to the transfer of proceedings to and from the Federal Circuit and Family Court of Australia (Division 2);
• amendment to the rules regarding examinations by a medical expert; and
• increase in the Costs Allowable for Work Done and Services Performed as set out in Schedule 3 of the Federal Court Rules 2011 (Cth) (Federal Court Rules).

Most significantly for the media and other interested parties, the amendment to subrule 2.32(2) of the Federal Court Rules prevents a person who is not a party from inspecting certain documents in a proceeding until after the first directions hearing or the hearing (whichever is earlier), unless they are successful in an early application to the Court.  This has a significant impact on journalists, as they are no longer provided with the right to access key documents relating to proceedings, including the originating application, statement of claim and defence, until after the case has appeared in Court, which is usually several weeks (or longer) after the proceedings have commenced. 

Why it matters

In the Explanatory Statement to the Amendment Rules, the Federal Court stated that the changes "do not have any significant effect on human rights or freedoms".  This is not the sentiment shared by many journalists, who argue that the changes, which were introduced without consultation with the media, are contrary to principles of open justice and limit the media's ability to provide the public with updates about court cases in a timely and accurate manner.  

The amendment to non-party access to documents poses a significant barrier to media access to information about Federal Court proceedings.  Media organisations will only have the right to access limited information, such as party names, prior to the first court hearing.  This means that journalists will be limited in their ability to rely on Court documents to publicly report on cases for several weeks (or often times longer) after the proceedings have been on foot.

The Federal Court has indicated that the purpose of the change is to protect the legitimate interests of parties to proceedings, including to avoid circumstances where parties learn of their involvement in a case through the media, or where sensitive, personal or confidential information is published without a party having an opportunity to make an application for confidentiality or suppression. 

It is not entirely clear why the Court considers its existing procedures to be insufficient to address these issues.  For example, there are already Court rules requiring an applicant to take steps to engage with the respondent before commencing proceedings, and the Court already has a filing system which allows for documents to be filed confidentially.  

Notwithstanding these issues raised by the Court, concerns will remain that the new limitations have a diminishing effect on the established principles of open justice and transparency.

Misinformation powers 

What to expect

In a recent media release by the Communications Minister, the Federal Government has announced plans to provide the media watchdog, the Australian Communications and Media Authority (ACMA), with new legislative powers to prevent misinformation and disinformation on digital platforms.

In Australia, misinformation and disinformation is currently self-regulated by the Digital Industry Group Inc (DIGI), a digital industry association with members such as Apple, Google, Meta, TikTok and Twitter.  DIGI strengthened its voluntary industry code, The Australian Code of Practice on Misinformation and Disinformation (DIGI Code), last December in response to stakeholder comments it received during its 2022 review of the DIGI Code.  A few key changes DIGI implemented include:

• a redefinition of harm with a lower threshold of "serious and credible" threat, as opposed to the previously higher threshold of "serious and imminent"; and 
• further commitments regarding recommendation systems and deterrence for advertisers that repeatedly promote content that proliferates misinformation.

The government is proposing to provide ACMA with new record keeping and information request powers to promote increased transparency and to ensure the digital industry properly adheres to their commitments as set out in the DIGI Code.  The proposed legislative powers include the ability for ACMA to compel digital platforms to hand over information about their complaints processes and their preventative measures to tackle the spread of misinformation and disinformation. 

These legislative powers are intended to strengthen the voluntary code measures undertaken by DIGI and extend the Code's application to all digital platforms, including non-signatories.  The proposed powers are in line with the recommendations of ACMA's June 2021 report which reviewed the adequacy of prevention measures of misinformation on online platforms.  In a recent media release, DIGI has broadly welcomed the government's legislative changes which in DIGI's view will enable ACMA to have a "longer-term mandate" to oversee the DIGI Code. 

The proposed changes will also empower ACMA to register an enforceable industry code with applicable penalties, if current industry self-regulation methods are inadequate in combatting the spread of misinformation and disinformation. Communications Minister, the Hon. Michelle Rowland MP, has stated that the Government intends for ACMA to function as a "strong regulatory backstop" in this co-regulatory structure, to ensure all digital platforms comply with the DIGI Code.  This is similar to the existing powers of ACMA in the telecommunications sector. 

The Federal Government will release an exposure draft bill and commence a public consultation on the proposed legislative powers in the first half of 2023.  After consideration of public, stakeholder and industry feedback, the legislation will likely be introduced to parliament later in the year.  

Why it matters

In the past few years, the risk of misinformation and disinformation online has grown exponentially, as users readily turn to digital platforms to source information, obtain the news and communicate with family, friends and businesses. Minister Rowland has expressed concerns that misinformation and disinformation pose a tangible threat to both the "safety and wellbeing of Australians, as well as to our democracy, society and economy".

Businesses should be aware that ACMA will be empowered with oversight powers to ensure that all online platforms operate in accordance with the commitments set out in the DIGI Code.  While the focus of ACMA's proposed powers is on systematic flaws within digital platforms rather than regulating discrete pieces of content, businesses should still be vigilant and take care to review their content for misinformation and disinformation, as digital platforms are likely to enforce tighter preventative measures to ensure they do not breach the DIGI Code.

Privacy Changes

What to expect

The Australian Government has signalled it will most likely pursue reform of the Privacy Act 1988 (Cth) (Privacy Act) in the coming year, with recent comments by Attorney-General Mark Dreyfus confirming that a suite of modernisations to Australia's privacy legislation will be considered following Dreyfus' receipt of the Privacy Act Review conducted in late 2020. 

The introduction of "right to be forgotten" (RTBF) laws is within the scope of reform, as this right to erasure has already been enacted in the European Union (EU) through Article 17 of the General Data Protection Regulation (GDPR).  The Attorney-General highlighted that these reforms abroad would be an important consideration as the government designs their own imminent reforms to privacy legislation in Australia.

The RTBF currently operates in the EU to provide its citizens with the right to request that organisations permanently erase their personal information without undue delay.  Article 17 of the GDPR outlines a range of circumstances where the RTBF is applicable which include by way of example:

• the individual's personal data is no longer required for the original purpose it was collected or processed for;
• the individual withdraws their consent for the organisation's processing of their data; or
• the individual objects to the organisation processing their data for direct marketing (General Data Protection Regulation, Article 17).

In the above circumstances the organisation would be legally required to comply with requests for erasure.

In addition to implementing the RTBF, the Attorney-General has also flagged that a statutory tort of privacy will be considered in the forthcoming privacy reforms.  A statutory tort of privacy would introduce a direct right to sue that individuals can use to seek redress against organisations where their privacy has been breached. 

Why it matters

We can expect at least a few significant changes in the forthcoming reforms on the Australian privacy regime, including the implementation of RTBF laws that would result in the Privacy Act aligning with the more robust data protections laws already in force in the EU, as well as the potential introduction of the statutory tort of privacy. 

The Australian Law Reform Commission (ALRC) has provided a longstanding recommendation for the introduction of a statutory tort for serious breaches of privacy, which was initially raised as the key recommendation in the 2014 Serious Invasions of Privacy Final Report. In their 2019 Digital Platforms Inquiry Final Report , the Australian Competition and Consumer Commission (ACCC) also recommended the introduction of a statutory tort for "serious invasions of privacy" (ACCC Digital Platforms Inquiry, Final Report dated June 2019, Recommendation 19 p 493) that fall outside the scope of the Privacy Act, which re-enlivened the debate on the issue five years on.  The ACCC recommended that the statutory tort have a broader scope than the Privacy Act, covering the entire economy.

The current regulation in the Privacy Act provides a limited opportunity for individuals to seek redress, affording specific exemptions to businesses engaged in journalism or politics, as well as small businesses with annual turnover below AUD $3 million.  In addition, the remedies for individuals available under the Privacy Act (i.e. sections 36 and 80W) are limited to complaints to the Office of the Australian Information Commissioner or applying for injunctions for breaches of the Privacy Act.

If enacted, a statutory tort would likely provide a direct right of action to seek damages for privacy breaches of information. 

As a result, Australian businesses and organisations should, in preparation, consider:

• implementing robust and streamlined procedures to ensure customer requests for data erasure are handled appropriately and without undue delay; and
• reviewing and strengthening existing data security measures to mitigate against serious data privacy breaches, which have been on the rise. 

Introduction of the National Cultural Policy 

What to expect

On 30 January 2023, the Federal Government launched their new National Cultural Policy, "Revive", a five-year plan to rejuvenate the Australian creative industries.  The full policy is available on the Office for the Arts website.

The Policy comprises a general plan to revive the Australian arts sector, including the creation of Creative Australia, which is an expanded and reinvigorated version of the Australia Council for the Arts.  The Policy forecasts a wide number of forthcoming legislative measures, actions and cultural infrastructure funding to support the creative industries, to promote First Nations stories, and to mitigate the negative impacts of previous funding cuts and the Covid-19 pandemic on local creative industries. 

These proposed legislative changes and infrastructure funding include:

• the introduction of streaming content requirements; 
• the establishment of the Centre for Arts and Entertainment Workplaces; and 
• the modernisation of the Government's Lending Right Schemes, expanding the compensation of Australian book publishers and creators to digital works (e.g. e-books and audiobooks) made accessible to the public in Australian lending libraries. 

Introduction of new content rules for streaming services

A significant and highly anticipated aspect of the Policy is the Federal Government's announcement that it will introduce new content requirements on streaming platforms in the third quarter of 2023, to commence no later than 1 July 2024.  

The Policy does not outline any specific details of these new content requirements, including the form the proposed Australian content requirements will take or how any proposed quota or minimum content/investment requirement (or other method imposed under the changes) will be calculated.

The Federal Government has indicated that the finer details of the streaming content obligations and its implementation will be informed by the industry consultation with the Arts and Communications Ministers, to take place during the first half of 2023. 

If introduced, these changes will mark the first time streaming services have been subject to content requirements similar to the existing obligations on traditional broadcasters, although such a policy has been the subject of debate for several years.

Establishment of Centre for Arts and Entertainment Workplaces

The Policy also establishes a Centre for Arts and Entertainment Workplaces within Creative Australia which will primarily function to:

• provide advice on issues of pay; 
• provide advice on safety and welfare in the creative industries; 
• refer matters to the relevant authorities; and
• develop codes of conduct and provide resources for the arts sector. 

This Centre is part of the Government's intention to encourage the development and stability of the Australian creative workforce and support artists as workers.  The Centre will likely provide guidance on issues concerning actors' consent in specific storylines, among a number of other issues. 

Why it matters

The new National Cultural Policy sets out forthcoming legislative changes and measures that will significantly affect how media organisations, in particular streaming services, operate in Australia. It is important for interested parties to engage with the industry consultation process that will unfold over the first half of 2023, and to prepare for the changes to come. 

We will provide further updates on the consultation and drafting process in due course.  

Next Steps

These changes are likely to have some significant impacts. We will keep you updated on any developments, particularly as proposed drafting is released.

In the meantime, please get in contact if you would like any further information about or assistance with your response to any of the above.

Authors: Robert Todd, Partner; Nick Perkins, Senior Associate; Imogen Loxton, Senior Associate; Karen Wang, Graduate; and Lisa Xia, Graduate.