Amendments to the Defamation Act 2005: Changes Explained

Queensland's Digital Age Reforms Under the Defamation and Other Legislation Amendment Act 2025

On 19 December 2025, the Defamation and Other Legislation Amendment Act 2025 (Qld) received royal assent, marking the most significant update to Queensland's defamation framework in two decades. Commencing seven days after assent, these reforms modernise the Defamation Act 2005 to address the realities of digital publishing and social media, implementing nationally agreed Stage 2 Model Defamation Amendment Provisions.

The amendments strike a careful balance between protecting reputations and preserving freedom of expression in the digital age, introducing groundbreaking protections for digital intermediaries, strengthening safeguards for victim-survivors reporting to police, and expanding judicial powers to address online defamation.

Background: A National Reform Initiative

The reforms emerge from the Model Defamation Law Working Party's Stage 2 Review, which was divided into two parts:

• Part A (led by New South Wales): Focused on internet intermediary liability for third-party content
• Part B (led by Victoria): Examined extending absolute privilege to reports made to police and complaints-handling bodies

Following extensive consultation including 48 submissions on the Discussion Paper, exposure drafts, and stakeholder roundtables with technology sector representatives, legal bodies, media companies, and victims' rights groups, the Standing Council of Attorneys-General approved the amendments by majority in September 2023.

Queensland joins New South Wales, Victoria, the Australian Capital Territory, Tasmania, and the Northern Territory in enacting these nationally consistent reforms.

Key Reform Areas

1. Digital Intermediary Exemptions and Defence

The centerpiece of the reforms is a comprehensive framework addressing when digital platforms, website administrators, and search engines can be held liable for defamatory content posted by third parties.

Statutory Exemptions from Liability

The Act introduces two new exemptions from defamation liability:

Exemption for Passive Service Providers (s 10C)

Digital intermediaries are exempt from liability where their role is limited to providing:

• Caching services.
• Conduit services.
• Storage services.

The exemption requires proving:

1. The matter was published using one or more of these services
2. The intermediary's role was limited to providing these services
3. The intermediary did not take an "active role" in publication (such as initiating, promoting, or editing the matter)

Importantly, actions required by law or court order do not constitute an "active role" that would disqualify the exemption.

Exemption for Search Engine Providers (s 10D)

Search engine providers receive exemption for:

• Publication of search results.
• Publication of matter on linked websites.

The exemption applies only to organically generated search results that:

• Are automatically produced in response to user queries.
• Identify webpages by title, hyperlink, extract, or image.
• Are not sponsored or promoted due to payment.

This codifies the High Court's majority decision in Google LLC v Defteros [2022] HCA 27, providing certainty for search engine operators. Notably, the exemption applies to automatically generated results but not to defamatory autocomplete suggestions themselves.

New Defence for Digital Intermediaries (s 31A)

Beyond the exemptions, the Act creates a new defence specifically designed for the digital environment, replacing reliance on the problematic "innocent dissemination" defence.

To establish the defence, a defendant must prove:

1. They were a digital intermediary in relation to the publication.
2. An accessible complaints mechanism existed at the time of publication.
3. If a complaint was received, reasonable "access prevention steps" were taken either before the complaint or within seven days after receiving it.

Key Features:

• Seven-Day Response Window: Provides intermediaries with adequate time to assess complaints and take appropriate action, balancing complainants' needs for prompt remedies with intermediaries' operational realities.
• Content Moderation Permitted: The defence remains available even where intermediaries actively moderate content to detect defamatory material or enforce terms of service.
• Flexible Complaint Process: No formal requirements beyond written notice containing basic information about the defamatory matter and its location.
• Objective Test: Whether the intermediary was "made aware" of the complaint is assessed from the perspective of a reasonable person in the intermediary's circumstances.

Defeating the Defence:

The defence can only be defeated if the plaintiff proves the defendant was actuated by malice in establishing or providing the online service. An example would be creating a social media page specifically to encourage defamatory posts about the plaintiff.

Practical Implications:

The new defence addresses critical limitations of the innocent dissemination defence, particularly:

• Uncertainty about whether intermediaries possess "editorial control" given modern technical capacities.
• Confusion regarding actual versus constructive knowledge requirements.
• Lack of specific timeframes for responding to complaints.
• Disincentives for proactive content monitoring.

2. Court Powers and Preliminary Discovery

Orders for Preliminary Discovery (s 23A)

Courts must now explicitly consider two matters when making preliminary discovery orders to identify posters of defamatory digital matter:

1. The objects of the Defamation Act; and
2. Privacy, safety, or other public interest concerns

This provision ensures courts balance the plaintiff's need to identify anonymous defendants against potential harms, such as domestic violence risks where an alleged perpetrator seeks a victim's address.

Orders Against Non-Party Digital Intermediaries (s 39A)

Courts gain expanded power to order digital intermediaries who are not parties to defamation proceedings to take access prevention steps or other actions regarding defamatory digital matter.

Critically, these orders can be made even where the intermediary would have a statutory exemption or defence, ensuring effective remedies for removing harmful content regardless of liability.

3. Expanded Absolute Privilege for Police Reports (s 27)

The Act extends the defence of absolute privilege to publications of defamatory matter made to police officials acting in their official capacity.

Why This Matters:

Previously, reports to police typically relied on qualified privilege, which can be defeated by proving malice. Anecdotal evidence indicated the threat of defamation proceedings was deterring complainants, particularly:

• Domestic violence victims.
• Whistleblowers.
• Persons reporting misconduct.

The new absolute privilege removes this chilling effect, ensuring victim-survivors and other complainants can report matters without fear of defamation liability.

Scope of "Official":

The definition broadly encompasses:

• Police officers and administrative staff.
• The head of police forces or services.
• Contractors and other persons acting for or on behalf of police in an official capacity.
• Police officers from other jurisdictions operating within Queensland.

4. Offers to Make Amends (s 15)

Publishers making offers to make amends can now include offers to take "access prevention steps" regarding digital matter, either instead of or in addition to the mandatory remedial offers of correction and apology.

This modernises the offer-to-make-amends regime for the digital context, where removing or restricting access may be more practical and effective than traditional remedies.

5. Electronic Service of Documents (s 44)

The Act permits service of notices and documents via email, messaging, or other electronic communication to addresses or locations indicated by the recipient, modernising procedures for the digital environment.

6. Early Determination of Exemptions (s 10E)

Courts can determine whether digital intermediary exemptions apply at an early stage of proceedings, potentially disposing of claims efficiently and reducing litigation costs.

Application and Transitional Provisions

The reforms include carefully calibrated transitional provisions governing their application:

Digital Intermediary Provisions (s 52)

• Apply to causes of action accruing after commencement.
• Exception: Multiple publications of the same matter spanning commencement will be governed by existing law if post-commencement publications occur within one year.

Offer to Make Amends Amendments (s 53)

• Apply to offers made after commencement, regardless of when publication occurred.

Court Orders (s 54)

• Apply to orders made after commencement, regardless of when proceedings commenced or causes of action accrued.

Absolute Privilege (s 55)

• Applies to publications after commencement only.

Electronic Service (s 56)

• Applies to documents given or served after commencement.

Criminal Defamation Amendments

The Act amends section 365 of the Criminal Code to ensure digital intermediaries who benefit from the new civil exemptions or defence also have a lawful excuse for criminal defamation.

This prevents the anomalous situation where an intermediary escapes civil liability but remains exposed to criminal prosecution. The lawful excuse operates where the accused would have an exemption or defence under sections 10C, 10D, or 31A if civil proceedings were brought.

Practical Implications for Stakeholders

For Digital Platforms and Website Administrators

Action Items:

1. Implement accessible complaints mechanisms with clear processes.
2. Establish protocols for seven-day response timeframes.
3. Document decision-making regarding content removal.
4. Review and update terms of service regarding defamatory content.
5. Train staff on new exemptions and defence requirements.

Risk Management:

• The exemptions and defence provide significant protection but require procedural compliance.
• Proactive content moderation does not jeopardise the defence.
• Document all complaints and responses meticulously.
• Be cautious of any conduct that could be characterised as "active role" in publication.

For Media Organisations

The reforms provide clearer protection for:

• Comment sections on news articles.
• Social media pages administered by media entities.
• User-generated content platforms.

Media organisations should review moderation policies to ensure compliance with accessible complaints mechanisms and response timeframes.

For Community Groups and Forum Administrators

Administrators of neighbourhood groups, parent forums, and community pages receive substantial protection under the new regime. However, establishing and maintaining compliant complaints processes is essential.

For Complainants and Plaintiffs

Advantages:

• Clearer pathways for content removal via complaints mechanisms.
• Enhanced court powers to order takedowns from non-party intermediaries.
• Preliminary discovery safeguards protecting privacy and safety.

Considerations:

• Identifying liable publishers becomes more complex.
• Intermediary defences may limit available defendants.
• Early assessment of whether exemptions or defence apply is critical.

For Victim-Survivors and Whistleblowers

The absolute privilege for police reports provides crucial protection against defamation litigation being used as a tool of intimidation or silencing. This particularly benefits:

• Domestic violence survivors.
• Sexual assault complainants.
• Employees reporting workplace misconduct.
• Community members reporting criminal activity.

Strategic Considerations

Forum Shopping and National Consistency

Queensland's alignment with other jurisdictions reduces forum shopping opportunities and promotes consistent outcomes in cross-border publications. However, South Australia has not yet enacted the Stage 2 amendments, creating potential inconsistency.

Balancing Reputation and Free Expression

The reforms represent a carefully calibrated approach:

• Protecting reputation through enhanced takedown mechanisms and preliminary discovery safeguards.
• Preserving free expression by limiting intermediary liability and protecting good-faith reports to police.
• Enabling digital commerce by providing certainty for platforms, search engines, and online services.

Evolution of Digital Intermediary Concept

The definition of "digital intermediary" is purposefully broad, capturing:

• Social media platforms.
• Website hosting services.
• Forum administrators.
• Content delivery networks.
• Cloud storage providers.

As technology evolves, the boundaries of this definition will be tested, particularly regarding:

• Artificial intelligence content curation.
• Algorithm-driven content promotion.
• Hybrid human-AI moderation systems.

Compliance Recommendations

Immediate Actions

1. Review existing content policies and complaints processes.
2. Implement or enhance accessible complaints mechanisms.
3. Establish seven-day response protocols.
4. Train relevant personnel on new obligations.
5. Update terms of service and user agreements.

Ongoing Obligations

1. Monitor complaints and maintain response records.
2. Regularly review and update complaints mechanisms.
3. Stay informed about judicial interpretation of new provisions.
4. Assess whether activities constitute "active role" in publication.
5. Document decision-making processes regarding content moderation.

Conclusion

The Defamation and Other Legislation Amendment Act 2025 represents a watershed moment in Queensland's defamation law, modernising a framework that has remained largely unchanged since 2005. The reforms acknowledge the transformed media landscape while preserving fundamental protections for reputation.

For digital intermediaries, the Act provides much-needed clarity and protection, albeit with procedural requirements that must be carefully observed. For complainants and plaintiffs, the enhanced court powers and accessible complaints mechanisms offer more effective remedies. For the community, particularly victim-survivors, the absolute privilege for police reports removes a significant barrier to seeking justice.

As with any significant legislative reform, the practical operation of these provisions will develop through case law and real-world application. Stakeholders should monitor judicial interpretation closely, particularly regarding:

• The scope of "active role" in publication.
• What constitutes "reasonable" access prevention steps.
• The boundaries of the "digital intermediary" concept.
• Application of the malice exception to the new defence.

The commencement of these reforms places Queensland at the forefront of jurisdictions adapting defamation law for the digital age, providing a robust framework that balances competing interests while promoting responsible online discourse.

About Odyssey Legal

Odyssey Legal provides comprehensive advice on defamation law, media law, and digital content regulation. For assistance with understanding how these reforms affect your rights or obligations, please contact our team.

For a confidential discussion about commencing or defending defamation claims, then contact our team today:

Phone: 07 5370 8759
Email: info@odysseylegal.com.au
Book a Consult: Free Consultation

Frequently Asked Questions

When did the Defamation and Other Legislation Amendment Act 2025 commence?

The Act received royal assent on 19 December 2025 and commenced seven days after assent. This means the reforms are now in effect in Queensland.

Do the new digital intermediary protections apply to social media platforms?

Yes. The exemptions and defence apply to social media platforms that facilitate publication of third-party content. This includes major platforms like Facebook, Twitter/X, and Instagram, as well as smaller forums, community groups, and websites with comment sections.

What is a "digital intermediary" under the new law?

A digital intermediary is any person who provides or administers an online service by means of which digital matter is published. This includes social media platforms, website hosting providers, forum administrators, search engines, and content delivery networks. However, it excludes the author, originator, or poster of the content.

How long does a platform have to respond to a defamation complaint?

Under the new defence in section 31A, digital intermediaries must take reasonable access prevention steps either before receiving a complaint or within seven days after receiving a written complaint. This seven-day window balances the need for prompt action with operational realities.

What is an "accessible complaints mechanism"?

An accessible complaints mechanism is a process that allows complainants to notify the digital intermediary about defamatory content. While there are no strict formal requirements, the mechanism should be reasonably easy to find and use, and clearly indicate how to make a complaint about defamatory matter.

Does the search engine exemption apply to sponsored search results?

No. The exemption in section 10D only applies to organically generated search results. It specifically excludes search results that are promoted or prioritized because of payment or other benefit given to the search engine provider (sponsored results).

Can I still sue the person who posted defamatory content about me?

Yes. The reforms do not affect your ability to sue the actual author, originator, or poster of defamatory content. The exemptions and defence only protect intermediary platforms and services, not the person who created or posted the content.

What are "access prevention steps"?

Access prevention steps are actions taken to remove defamatory digital matter or prevent people from accessing it. This could include deleting posts, disabling links, blocking content, or taking other measures to stop the matter from being viewed by others.

Does the absolute privilege for police reports protect me from all defamation claims?

The absolute privilege in section 27 only protects publications made to police officials acting in their official capacity. It does not protect publications made to other parties or on social media. However, if you make a complaint to police and it is defamatory, you cannot be sued for that communication.

Do these reforms apply to defamatory content posted before the Act commenced?

Generally, the reforms apply to causes of action (publications) occurring after commencement. However, there are specific transitional provisions depending on the type of reform. For multiple publications of the same matter spanning the commencement date, existing law may continue to apply for up to one year.

What should I do if I run a Facebook group or online forum?

You should implement an accessible complaints mechanism, establish procedures to respond to complaints within seven days, document your complaint handling processes, and train any moderators on the new requirements. These steps will help you access the protection of the new defence.

Can a court order content removal even if the platform isn't legally liable?

Yes. Under the new section 39A, courts can make orders against digital intermediaries to take access prevention steps even where the intermediary has a statutory exemption or defence. This ensures effective remedies for removing harmful content regardless of liability.

How does this affect my website's comment section?

If your website allows user comments, you are a digital intermediary. You should implement a complaints mechanism and be prepared to respond to defamation complaints within seven days. The good news is that if you comply with these requirements, you can access strong legal protection under the new defence.

What happens if I moderate or filter comments on my platform?

The new defence in section 31A specifically provides that it remains available to platforms that moderate content to detect defamatory material or enforce terms of service. Unlike the old innocent dissemination defence, active content moderation does not disqualify you from protection.

Are autocomplete suggestions covered by the search engine exemption?

No. The exemption applies to search results generated by autocomplete suggestions, but not to defamatory meanings in the autocomplete suggestions themselves. Search engines remain potentially liable for defamatory autocomplete predictions.

What evidence do I need to keep to prove I took reasonable access prevention steps?

You should maintain records of: when complaints were received, what information was provided in the complaint, what steps you took in response, when those steps were taken, any decisions not to take action and the reasons why, and communications with the complainant. Comprehensive documentation is essential.

Does this Act affect criminal defamation prosecutions?

Yes. The Act amends section 365 of the Criminal Code so that digital intermediaries who would have an exemption or defence in civil proceedings also have a lawful excuse for criminal defamation. This prevents the anomaly of civil protection but criminal liability.

I received a complaint but I'm not sure the content is actually defamatory. What should I do?

You have seven days to assess the complaint and take reasonable access prevention steps. Consider seeking legal advice within that timeframe. However, taking content down as a precautionary measure does not constitute an admission that the material was defamatory.

Do the reforms apply to defamation that occurred in other states?

The reforms only apply in Queensland. However, New South Wales, Victoria, the Australian Capital Territory, Tasmania, and the Northern Territory have enacted substantially similar reforms as part of the national Model Defamation Provisions framework, creating consistency across most of Australia.