AUSTRALIA: An Introduction to TMT: Media

Regulating the Media Space

Throughout 2024, there has been further defamation law reform, significant case law developments and proposed new regulation introduced which will impact the media content space in Australia.

Defamation law reform 

Amendments providing for new or expanded defences to defamation claims in relation to digital intermediary liability and absolute privilege (also known as the “stage two” defamation reforms) came into effect in some Australian jurisdictions during the second half of 2024. At the time of publication, only New South Wales, the Australian Capital Territory and Victoria have enacted the changes. 

The amendments provide for:

• An exemption from defamation liability for “passive intermediaries”, namely caching, conduit and storage services.
• An exemption from defamation liability for search engine providers in relation to organic (not sponsored) search results, which is a significant change following a number of successful actions against Google in relation to “snippets”, hyperlinks and extracts appearing in search results. 
• A new defence for digital intermediaries (persons other than an author, originator or poster of the content who provide or administer an “online service”, such as a social media platform, internet forum or website) where the digital intermediary has an accessible complaints mechanism, a written complaint is received about content which contains specified information, and the digital intermediary takes reasonable “access prevention steps” to remove, block or prevent access to the content within seven days. 

Since the “stage two” reforms have only been introduced in some Australian jurisdictions, and Western Australia and the Northern Territory have still not yet introduced the “stage one” reforms (introduced in other Australian jurisdictions in 2021, including serious harm and the public interest defence), there is a lack of uniformity in Australian defamation law, and opportunities for “forum shopping” are increasing.

Significant defamation cases

In April 2024, after a long-running legal saga, Justice Lee of the Federal Court of Australia delivered his decision in the Bruce Lehrmann defamation case against Network Ten and journalist Lisa Wilkinson. Justice Lee upheld the publishers’ truth defence, finding on the balance of probabilities that Mr Lehrmann raped Brittany Higgins in a minister’s office at Australian Parliament House in March 2019. The defamation trial was of significant public interest, attracting almost an unprecedented level of media attention and being live-streamed on YouTube. Mr Lehrmann has appealed the decision.

The serious harm element of the tort of defamation continues to be the subject of judicial consideration by various Australian courts. In Peros v Nationwide News Pty Ltd & Others (No 3) [2024] QSC 192, the Supreme Court of Queensland held that the determination of serious harm should be made having regard to all of the circumstances of the case, not simply the circumstances of the publication. Justice Applegarth held that evidence of a plaintiff’s prior reputation can be taken into account by a court in considering whether the particular publication in issue caused the plaintiff serious harm. The plaintiff has appealed the decision.

Throughout 2024, a number of matters have proceeded to trial where a defendant has pleaded the public interest defence. It is anticipated that further judgments will be received which consider the public interest defence in detail during 2025.

Protection of journalists' confidential sources

In December 2023, the Federal Court of Australia handed down a decision which bolstered a journalist’s right to protect the identity of her confidential sources during legal proceedings under Section 126K of the Evidence Act 1995 (Cth). Justice Bromwich refused an application to compel the journalist to reveal her confidential sources on the basis that she had promised each source that she would not disclose their identity, and the public interest in the disclosure of the sources did not outweigh any possible adverse effects on the sources and/or others, and the ability of the news media to receive and provide facts.

In 2024, Queensland became the first Australian jurisdiction to extend journalist shield laws beyond the courts to quasi-judicial bodies, including the Crime and Corruption Commission.

Online regulation

Online safety

During 2024, Australia’s eSafety Commissioner continued to drive regulatory activity and enforcement of the Online Safety Act 2021 (Cth) (the “Online Safety Act”) and the related Online Safety (Basic Online Safety Expectations) Determination 2022 (the “BOSE Determination”). 

The independent online regulator, eSafety, has adopted a strong stance on enforcing transparency and accountability from online service providers, with six separate non-periodic reporting notices issued under the BOSE Determination. This is a smaller number than in 2023, but is said to be the result of ongoing work on notices issued in the 2022–2023 financial year. Companies including Google, Meta, WhatsApp, X Corp. and Reddit were required to report on measures taken to minimise the risk of terrorism and violent extremism on their services. 

In May 2024, the Federal Court of Australia refused to extend an interim injunction sought by eSafety under the Online Safety Act that would require X Corp. to remove videos globally from the X platform of a stabbing attack on a bishop. X Corp. had argued that it had complied with a notice from eSafety requiring it to “take all reasonable steps” to remove the material by geo-blocking the material from users in Australia. Justice Kennett determined that eSafety was not empowered to require X Corp. to remove the material globally.

Six industry codes came into effect in December 2023 and March 2024 in relation to social media services, app distribution services, hosting services, internet carriage services, equipment providers and internet search engine services, and two industry standards relating to relevant electronic services and designated internet services will come into effect in December 2024. The codes and industry standards predominantly focus on addressing the regulation of child sexual exploitation material and terrorist material.

The development of Phase 2 industry codes is currently under way. The aims of the Phase 2 industry codes are to prevent children from accessing or being exposed to age-inappropriate material online (such as online pornography) and to provide all end-users with effective information, tools and options to limit access and exposure to this material. 

Proposed misinformation/disinformation regulation

On 12 September 2024, the Commonwealth government introduced a Bill into parliament to amend the Broadcasting Services Act 1992 (Cth) to address misinformation and disinformation. If passed, the amendments would empower the Australian Communications and Media Authority (ACMA) to fine digital communication platforms up to 5% of their global revenue if they fail to prevent the spread of misinformation or disinformation online. Platforms would also be required to develop standards for how to deal with misinformation and disinformation, to be approved by ACMA, or be subject to ACMA’s own codes of conduct. 

Dissemination of professional news content – defined as content published online via various platforms including television programmes and websites, and audio-visual material distributed over the internet – that is editorially independent and subject to industry codes of practice, would be exempt from the regulation. The amendments would also not apply to content reasonably regarded as parody or satire.

Privacy and data 

On 12 September 2024, a Bill containing amendments to the Privacy Act 1988 (Cth) (the “Privacy Act”) was introduced into parliament. One of the most significant proposed reforms is the introduction of a cause of action for individuals if their privacy is seriously invaded by someone intruding into their private space (eg, physically or by watching or recording their activities) or misusing their information in circumstances where there is a reasonable expectation of privacy. The new tort will enable individuals to take action where there is intentional or reckless encroachment on their privacy. The Bill provides for a number of defences, including where the defendant has acted with lawful authority or with consent, in circumstances of necessity or defence of persons or property, or where information has been published which would be protected by certain defences under an action for defamation. Exemptions are provided for journalists (and their employers and assistants), enforcement bodies, intelligence agencies and persons under 18.

Despite the journalism exemption, concerns have been raised about whether the definition of “journalist” in the Bill is too narrow and will not protect non-traditional forms of journalism like podcasts and dramatised factual content, or reporters who are not formally employed within traditional media. Further, the proposed exemption does not extend to journalists’ sources.

Artificial intelligence

The development and use of AI is evolving at a rapid pace. While the government has introduced eight voluntary AI Ethics Principles to ensure that AI is safe, secure and reliable, it is also considering mandating ten guardrails on those developing and deploying AI in high-risk settings. The aim of these guardrails is to reduce the likelihood of harms occurring from the development and deployment of AI systems. 

Some media companies in Australia have signed AI licensing agreements. It was announced in May 2024 that News Corp (including The Australian, The Daily Telegraph and the Herald Sun) had entered into a multi-year agreement to license its content to OpenAI. Channel Nine has announced that it will unveil a formal AI strategy in the 2025 financial year.

Mergers & acquisitions 

There has been no significant M&A activity in the media sector in the last year.