Contempt of Court: Report (html)

13. Enforcement in the online age

Overview

• The law needs to adapt to online publishing.

• These challenges should be raised as part of other national reforms.

• People should not in general be punished for hosting the content of others.

• However, if they find out this material is in breach, they should take down the material. (See Chapter 14.)

• The laws should apply to material published overseas or interstate. This should apply in any of the following cases:

• A significant part of the conduct, such as the drafting, writing or uploading of the material, occurs in Victoria.

• A person intends to breach the restrictions in Victoria.

• A person knew or was reckless that it would undermine the purpose of the restriction in Victoria and did not take reasonable care to restrict its circulation in Victoria.

• There should be more cooperation to enforce restrictions on publication outside Victoria.

Adapting to an online age

13.1 Different laws restrict what can be published. These include the common law of contempt, the Judicial Proceedings Reports Act 1958 (Vic) and the Open Courts Act 2013 (Vic).^[1] These restrictions exist for different, although overlapping, purposes.

13.2 This report recommends a new Contempt Act, including contempts that restrict publication. In Chapter 12, the Commission recommends repealing the Judicial Proceedings Reports Act. It recommends moving two of its offences to the Open Courts Act.

13.3 This part uses ‘restrictions on publication’ to refer to the restrictions in the proposed Contempt of Court Act and the Open Courts Act and the restrictions it proposes moving from the Judicial Proceedings Reports Act.

13.4 Publication restrictions need to be enforced to achieve their purposes. In the online age, it is difficult to enforce them.

13.5 Today, almost anyone can be a publisher, share and republish at a keystroke. Publication happens nowhere and everywhere: publications can be impossible to trace yet accessible to anyone via the Internet. It is easy to find most publications no matter when and where they were published.

13.6 People can post on sites owned by others, in forums that are moderated and unmoderated, or through chat apps to large groups. Publications can reach huge audiences (or ‘go viral’) and publishers lose control of the information once it is published.

13.7 In these circumstances, is it even possible to enforce publication restrictions? The Commission has concluded there is still value in restricting publications (see Chapter 10). As discussed below, there is increasing political will to regulate online content.

13.8 Yet changes do have to be made to the way these restrictions are enforced. This chapter considers:

• how to harmonise liability across Australia and across areas of law

• how to define ‘publication’

• how to deal with the liability of online intermediaries

• how to deal with publications published interstate and overseas.

How should liability be harmonised across Australia and across areas of law?

13.9 Online publishing poses challenges in many areas of the law and in every country. These are likely to become more difficult in the coming years.^[2]

13.10 It is becoming harder to address online abuses with existing legal tools. It is hard for those publishing online to keep up with the pace of laws and initiatives, especially as more countries are applying laws outside their jurisdiction.^[3]

13.11 This inquiry should recognise the need for consistency. This will help people comply with laws.^[4] Further, it should recognise that ‘the political will to regulate the internet is stronger than ever’.^[5]

13.12 Recent developments include:

• proposals, calls and commitments to remove extremist and terrorist content^[6]

• investigations by governments into Google, Facebook and others^[7]

• the UK’s White Paper on ‘online harms’^[8] and Code of Practice for social media platforms^[9]

• Facebook’s announcement of an independent board to review its decisions on content^[10]

• Australia’s banning of overseas gambling websites.^[11]

13.13 In Australia, other inquiries are taking place. The New South Wales Law Reform Commission (NSW Commission) is reviewing suppression and non-publication orders.^[12] Two Commonwealth Parliamentary Committees are reviewing the effects of law enforcement and intelligence legislation on press freedom.^[13]

13.14 The Australian Competition and Consumer Commission (ACCC) has reported in its inquiry into digital platforms,^[14] and the Australian Government has produced its response to its recommendations.^[15] The Standing Committee of Attorneys-General is also reviewing Australia’s defamation laws.^[16] These reports are discussed next.

ACCC Digital Platforms Inquiry

13.15 The ACCC recommended a framework to regulate all media consistently, including digital platforms.^[17] It proposed a mandatory take-down code to help enforce copyright.^[18]

13.16 It recommended:

• encouraging public interest journalism and local journalism^[19]

• measures to improve digital media literacy^[20]

• setting up a body to monitor initiatives designed to help users assess news content^[21]

• a code of conduct to handle complaints about, and take down, disinformation.^[22]

13.17 The Australian Government announced its response to this report in December 2019,^[23] after further consultation.^[24] The Australian Government:

• committed to a staged process toward a media-neutral regulatory framework

• will request the major digital platforms to develop a voluntary code of conduct for disinformation and news quality

• will develop a pilot external dispute resolution scheme, to inform its decision whether to establish a Digital Platforms Ombudsman to resolve complaints

• will enhance an existing program to better support public interest journalism

• will develop a proposal for a network focusing on media literacy, and seek to have news and media literacy included within a review of the Australian curriculum.^[25]

13.18 The Australian Government did not support a mandatory take-down code for copyright enforcement, noting that it needed more data and further consultation and that there was a review of copyright reforms scheduled for late 2020.^[26]

Uniform defamation law review

13.19 The Council of Attorneys-General is currently conducting a review of the uniform defamation laws adopted by all states and territories in 2005.^[27] A discussion paper was published in July 2019^[28] and draft amendments were published in November 2019 for further feedback.^[29]

13.20 As discussed below, the draft legislation includes a ‘single publication’ rule. Time limits for beginning a defamation action would start when material is first published, although the draft legislation also proposes that a court should have more discretion in extending this time limit.^[30] The draft legislation also proposes a new defence of ‘responsible communication in the public interest’.^[31]

13.21 The review is also considering how to deal with digital platforms. This includes whether to change the existing defence, create clear exclusions or set out procedures to take down material.^[32] This will now be considered as a separate stage in the review process to take into account the matters raised in the ACCC’s Digital Platforms inquiry.^[33]

How does the Commission’s inquiry fit in the larger picture?

13.22 Increasingly, governments recognise a need to cooperate in regulating content on the internet. In this, governments follow public awareness of harms caused by online content.^[34]

13.23 Contempt law forms a small part of this debate, which also includes online safety, extremist and hate speech, copyright, ‘fake news’ and defamation.

13.24 Victoria cannot meet this challenge on its own. Most of the large digital platforms and publishers are established overseas, making enforcement more challenging.

13.25 This can also make the law seem unfair, because Australian media must comply while overseas publishers are free to publish. For example, this means that publishers in Victoria may be unable to report on trials in Victoria, even though the same information has been published online and is available in Victoria.

13.26 The challenges discussed in this chapter are therefore better dealt with as part of broader reforms in defamation and of digital platforms. If take-down order regimes can be made to work in copyright and defamation, these could equally apply to contempt law. (See Chapter 14.)

13.27 Some of the recommendations made by the ACCC could also address some of these challenges. Consistent regulation of media will help reduce the inequality experienced by traditional media. Measures to improve the quality of news may make information more reliable. Improving digital media literacy could reduce the risks created by online publications.

13.28 The time is right to place restrictions on publication within the broader agenda of regulating online content. For example, if take-down regimes are adopted following the Digital Platforms Inquiry, they can include court orders enforcing restrictions on publication.

13.29 Key countries including Australia are negotiating the mutual enforcement of suppression orders.^[35] This could extend to other forms of publication restriction.

13.30 The Director of Public Prosecutions (DPP) submitted that in practice it was often difficult to identify in online publications the appropriate party to proceed against, which was a serious barrier to enforcement.^[36]

13.31 The issue of the identification of online publishers has implications for other areas of law, including defamation law. It can be dealt with in other ways, such as regulation of the media. The Commission therefore recommends this issue be considered as part of any broader national regulatory reform process.

Recommendation

109 The Victorian Government should raise the issue of the enforcement of restrictions on publications in any national regulatory reforms with respect to take-down orders and other regulation of digital platforms, including the issue of identifying publishers online.

How should the law adapt to online publishing?

13.32 The consultation paper discussed two ways to adapt to online publishing:

• changing the definition of ‘publication’

• changing the approach to online intermediaries.^[37]

How should ‘publication’ be defined?

13.33 The definition of ‘publication’ differs in some minor respects between contempt law, the Judicial Proceedings Reports Act and the Open Courts Act.^[38] The consultation paper asked whether the terms ‘publish’ and ‘publication’ should be defined consistently and, if so, how.^[39]

13.34 In Chapter 12, the Commission recommends repealing several offences in the Judicial Proceedings Reports Act. It recommends moving the rest to the Open Courts Act and therefore repealing the Judicial Proceedings Reports Act.

13.35 In the Open Courts Act, ‘publish’ means disseminate or provide access to the public or a section of the public by any means, including by any of the following:

• publication in a book, newspaper, magazine or other written publication

• broadcast by radio or television

• public exhibition

• broadcast or electronic communication.^[40]

13.36 The definition of ‘publish’ in section 4 of the Judicial Proceedings Reports Act is the same as in the Open Courts Act, but there is no definition of ‘publish’ or ‘publication’ in section 3 of the Judicial Proceedings Reports Act.^[41] However, unlike the Open Courts Act, the Judicial Proceedings Reports Act does not specify that ‘publication’ is to be construed according to the definition of ‘publish’. Under contempt law, publication occurs when material is made available to the public or to a section of the public.^[42]

13.37 While the definitions are broad and inclusive, they may sometimes be unclear, especially in the age of social media, whether information has been made ‘available to the public or a section of the public’. For example, is a post on a private Facebook page published to ‘a section of the public?’^[43]

13.38 The Australian Law Reform Commission (ALRC) recently addressed a similar issue in relation to the privacy protections for family law proceedings. It recommended redrafting the provision to exclude communications that were private in nature and to make it clear that it applies to publishing on the internet and on social media.^[44]

13.39 Most importantly, the courts have interpreted ‘publication’ as continuing while the material is available online.^[45] As a result, a person can be punished for material that was lawful when it was first posted, and that is merely left online by the publisher as part of its online archive. However, the Victorian Court of Appeal has ruled that archived material of this kind is unlikely to be in contempt, as jurors are unlikely to be exposed to it.^[46]

13.40 The Council of Attorneys-General is proposing a ‘single publication’ rule for defamation law. The draft legislation provides that the cause of action accrues on the day of first publication, which for electronic material is defined as the day the matter was first posted or uploaded on a website. The draft legislation also makes it easier for a court to extend the limitation time for an action. The draft legislation does not otherwise redefine the term ‘publication’.^[47]

Responses

13.41 Those who addressed the issue agreed that the definitions of ‘publication’ and ‘publish’ should be applied consistently,^[48] but they pointed to different legislative definitions as the desired model.

13.42 Australia’s Right to Know Coalition (ARTK) and MinterEllison Media Group supported changing the definition to mirror defamation law.^[49] The Criminal Bar Association and the Commercial Bar Association Media Law Section Working Group (CommBar—Media Law Section) favoured the definition in the Open Courts Act.^[50] The Children’s Court did not have concerns about the definition under its Act,^[51] which mirrors that in the Open Courts Act.^[52]

13.43 The DPP supported making clearer the meaning of ‘disseminate or provide access to the public or a section of the public’.^[53] The County Court supported an inclusive list of examples to make the definition clearer.^[54] The Criminal Bar Association suggested that the legislation could usefully indicate communications that are excluded from the definition, such as private emails.^[55]

13.44 Several responses supported making clear when material had been published. The Criminal Bar Association and the DPP preferred that ‘publication’ be defined as a continuing act.^[56]

13.45 Media lawyers and academics and the Law Institute of Victoria (LIV) agreed that publishers could not be expected to monitor archived online materials. Removing such materials would also interfere with the public record, as they were unlikely to be restored afterwards. For these reasons, ‘publication’ should be defined as taking place when material is first published.^[57] However, some stakeholders noted that this was less of an issue for sub judice contempt, as archived material did not usually create a real risk of prejudice.^[58]

13.46 ARTK and MinterEllison Media Group suggested defining online material as only having been published when downloaded by a third party. However, the definition for print and traditional media should stay the same.^[59]

Commission’s conclusions: clarify and define publication consistently

Defining ‘publication’ consistently

13.47 There should be a consistent definition of ‘publication’ and ‘publish’ in the Open Courts Act and the proposed Contempt of Court Act. It is not necessary to apply this to the Judicial Proceedings Reports Act, because the Commission is recommending that offences in the Judicial Proceedings Reports Act should be either repealed or moved to the Open Courts Act.

13.48 The model for this should be the statutory definition of the Open Courts Act. This is clearer and more relevant than the definition in defamation law.^[60]

What is ‘the public or a section of the public’?

13.49 There should be a clear meaning of ‘providing access to the public or a section of the public’. Often used in legislation, this term is flexible enough to cater for changing forms of publication. However, it would be helpful to clarify its application in the online context, since many more people are likely to be subject to these sanctions.

13.50 The Criminal Bar Association suggested excluding private communications, such as private emails. This is consistent with the approach taken by the ALRC. However, it may be misleading to focus on the medium. For example, email newsletters can be broadcast to the public.

13.51 The Commission recommends adding an inclusive list of factors to guide the meaning of dissemination to ‘the public or a section of the public’. These factors do not need to be considered in straightforward cases, such as publication in a newspaper, and will be most useful in the context of social media. This list may include:

• whether there is any established relationship between the parties

• the nature of any relationship between the parties

• the size of the audience

• the ease with which a person unknown to the publisher can access the communication.^[61]

13.52 These factors focus on the ‘public’ nature of the communication rather than the medium or platform. For example, a post to a WhatsApp group may be considered private where it is published only to family members, yet it may be available to the public if anyone can opt into the group.

13.53 Further, it may be useful to include in a legislative note examples of communications that are excluded. This could include emails between two individuals, and private WhatsApp groups between family and friends.

Liability and the timing of publication

13.54 It is unfair for publishers to be punished for online material that at the time of original publication was lawful. To comply with the law, publishers must be aware of all the content they have previously published. They must also constantly monitor court proceedings so that they become aware as soon as court proceedings are pending.

13.55 There is a need to clarify the law to ensure publishers are not liable for material that was lawful when first published. There are two ways this can be achieved. ‘Publication’ could be defined as a single act; it occurs when the material is first made available. A person’s liability would be determined at the time the person first made the material available.

13.56 Alternatively, the legislation could state that a person is not liable for material that was lawful when first made available. This would have the same effect on the liability of archived material but would not change the underlying definition of ‘publication’, and therefore would not have unintended effects for other parts of the Victorian statute book.

13.57 The Commission recommends adopting the second approach of an express exclusion from liability for online intermediaries. This is clearer and more direct. This exclusion should apply if the material was lawful when it was first made available.

13.58 Publishers should still be liable if they take steps to republish the material once the material has become unlawful, such as promoting it on the homepage of the website or directing readers’ attention to it through a link in a new article. While this still places a burden on publishers to check archived material, this would only occur when there is an opportunity to check the material in the context of a related story.

13.59 However, it would be unfair to hold publishers liable for online material that has been made available, but which is removed before anyone has read it. The definition of ‘publication’ should therefore provide that publication of online material only occurs if the material has been downloaded or accessed by a third party.

13.60 Redefining ‘publication’ would be more attractive if the same reform was adopted as part of defamation law. However, as noted earlier, the draft legislation does not redefine the term ‘publication’, but instead specifies when a cause of action would accrue, so that a person could not be indefinitely liable for defamation. This is less relevant here. Other than for the offence of identifying victims of sexual offences, the duration of the restrictions on publications are already limited by the offence itself.

Recommendations

110 The Open Courts Act and the Commission’s proposed Contempt of Court Act should provide that a publisher is not liable, other than under the proposed take-down order scheme, if:

• at the time the material was first made available, the material did not breach the relevant provisions, and

• the publisher has not since taken any steps to republish the material.

111 The definitions of ‘publish’ and ‘publication’ in the Open Courts Act should be amended to include a list of factors the court may have regard to in determining whether the material has been disseminated to ‘the public or a section of the public’. This list should include:

• whether there is any established relationship between the parties

• the nature of any relationship between the parties

• the size of the audience

• the ease with which a person unknown to the publisher can access the communication.

112 The definition of ‘publication’ in the Open Courts Act should be amended to provide that the publication of online material occurs only if the material has been downloaded or accessed by a third party.

113 For consistency, the definitions of ‘publish’ and ‘publication’ in the Open Courts Act should be reflected in the Commission’s proposed Contempt of Court Act.

Should online intermediaries be liable for publications?

13.61 The consultation paper asked if any reforms should be made to address the liability of online intermediaries.^[62]

What are online intermediaries?

13.62 Online or internet intermediaries:

bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties.^[63]

13.63 They include search engines, portals and networking platforms that host users’ content or allow users to communicate with each other.^[64] The ACCC has used the term ‘digital platforms’ to describe this group. It defines ‘digital platforms’ as ‘applications that serve multiple groups of users at once, providing value to each group based on the presence of other users.’^[65]

13.64 Digital platforms are now ‘considerably more than mere distributors or pure intermediaries in the supply of news content in Australia’.^[66] They select and curate content, evaluate content, and rank and arrange content. Some are increasingly creating or commissioning other content.^[67]

13.65 Most definitions exclude those that produce their own content, such as online news publishers. However, these may sometimes be intermediaries, such as when users comment on their articles, or when they host and distribute the videos of others.^[68]

The global context of intermediaries

13.66 The liability of these intermediaries is relevant to many areas of law, including copyright, defamation and the distribution of harmful material online.^[69] Worldwide, there has been growing concern and interest in the regulation of intermediaries.^[70]

13.67 Online publishing makes it harder to identify or locate the original publishers. In many cases, the person making a comment may be unable to change or remove the offending material even if the person becomes aware that it is an offence. This makes it more attractive to pursue online intermediaries.

13.68 However, intermediaries are caught between opposing demands. On the one hand, they are asked to police content to respect laws and protect their users. On the other, people object to them deciding what can be published and limiting free speech.^[71]

13.69 There has been much recent work on this issue.^[72] For example, the Manila Principles on Intermediary Liability state that:

• Intermediaries should be shielded by law from liability for third party content.

• Content should only be restricted by an order from a judicial authority.

• Requests for restrictions must be clear, be unambiguous, and follow due process.

• Laws and content restriction orders and practices must be necessary and proportionate.

• Laws and content restriction policies and practices must respect due process.

• Laws, policies and practices must build in transparency and accountability.^[73]

13.70 This is consistent with the recommendations of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.^[74]

13.71 In New Zealand, there has been a recent example of the difficulties of enforcing suppression orders. Google emailed the name of an accused in a murder trial to subscribers to Google Trends, an online service listing trending searches in New Zealand, after the name of the accused had been suppressed. After the email was sent Google received notice of the suppression order. In response to the concerns raised by the

New Zealand Government, Google met with the courts and the DPP and informed them of Google’s processes for the take down of information in compliance with court orders. Google also suspended Google Trends in New Zealand.^[75]

Intermediary liability in Australia

13.72 As discussed in the consultation paper, the liability of intermediaries in Australia is ‘confusing’ and ‘largely incoherent’.^[76]

13.73 The Broadcasting Services Act 1992 (Cth) protects internet content hosts^[77] and internet service providers from liability if they are not aware of the nature of the hosted internet content. The Act also provides that such providers are not required to monitor, inquire about or keep records of the content it hosts. The Act overrides any inconsistent laws, including state or territory laws and the common law.^[78]

13.74 Australian courts have not yet considered the liability of intermediaries in contempt law.^[79] In other areas, such as defamation and copyright, courts are struggling to adapt legal rules to deal with intermediaries.^[80]

13.75 The law has not yet settled whether search engines are ‘publishers’ for the purposes of defamation law. It appears likely they may be treated as ‘secondary publishers’, although this depends on the facts of the case. This means they are only liable if they know the nature of the content and do not remove the publication within a reasonable time.^[81]

13.76 However, for the purposes of defamation law, media companies have been held to be primary publishers of comments by third-party users on their public Facebook pages.^[82]

13.77 The review of uniform defamation law is also considering the liability of online intermediaries in defamation law, including whether to reform the defence of innocent dissemination, enact a clear exemption for online intermediaries, and introduce a take-down scheme.^[83] As noted earlier, this issue will now be considered as a second stage in the reform process.^[84]

13.78 The ACCC’s Digital Platforms Inquiry considered the issue in the context of enforcing copyright law. The ACCC recommended that, in consultation with industry, a mandatory take-down code should be developed to help enforce copyright law.^[85] As noted earlier, the Australian Government has not adopted this recommendation and will defer consideration to a review of copyright law scheduled for 2020.^[86]

13.79 Both the NSW Commission and New Zealand Law Commission recommended there should be, in sub judice contempt, a defence for internet service providers and internet content hosts. This would apply if they did not know of the nature of the content or, if they did, they took reasonable care to prevent publication.^[87] This defence is included in New Zealand’s contempt legislation.^[88]

Responses

13.80 Most stakeholders agreed that an online intermediary should only be liable if it has been made aware of the material and does not remove it within a reasonable time.^[89] A higher standard would be inconsistent with the Broadcasting Services Act.^[90]

13.81 Others submitted that online intermediaries were not in a position to assess the lawfulness of material. A better approach would be to follow the British approach which presumes an intermediary is not liable, unless it is not practical to pursue the original publisher.^[91]

13.82 The Law Institute of Victoria expressly endorsed the defence recommended by the NSW Commission. However, it noted this should be confined to certain intermediaries only.^[92] It suggested that, regarding social media platforms and search engines, a factor would be whether the intermediary had put in place a reasonable precautionary system.^[93]

13.83 The Criminal Bar Association suggested that online intermediaries could be required to provide information when a person signed up to use their services.^[94]

13.84 Several organisations said it was unfair to punish the owners of public internet pages for the comments of others if they did not have notice of the nature of the content.^[95] However, the Criminal Bar Association considered that it would be appropriate for online intermediaries to be responsible for such conduct.^[96]

13.85 ARTK noted that online platforms differed in the control they gave users to moderate or block content posted by others. It also suggested there be an exemption for intermediaries rather than a defence, so that the resources of parties and courts would not be wasted.^[97]

Commission’s conclusions: online intermediaries

13.86 Legislation should directly address the liability of online intermediaries in respect of restrictions on publication. This issue should be resolved by Parliament.

13.87 In principle, online intermediaries should not be treated in the same way as the original publisher. The person who publishes the material should be punished, not the provider who makes publication possible.

13.88 It is unfair to expect online intermediaries to check that material published is not in breach of the law. This would stifle freedom of expression and impose an unfair burden, especially since these are criminal restrictions and the breach would often be unclear from the material.

13.89 This is true even though they may select, evaluate and rank content. While they are more than passive conduits, their responsibility is different, and the legal response should reflect this.

13.90 The position is different if a court determines the material should not be published or should be taken down, and the online intermediary is given notice and enough time to comply. This strikes a fairer balance by ensuring that intermediaries do not have the duty to assess themselves whether the material is in compliance with the law, but do have a duty to respond to notices.

13.91 The Commission recommends that online intermediaries be excluded from liability in relation to third-party content until they have received notice of a court order and have had enough time to comply. The recommendations governing take-down orders are covered in the next chapter.

13.92 Providing an exclusion from liability rather than a defence better reflects the responsibility of online intermediaries. It is easier to rely on an exclusion than a defence, as is evidenced by the difficulties that intermediaries have faced in trying to rely on defences in defamation law.^[98]

13.93 The same principles should apply to owners of public websites in relation to content posted by third parties. While they have more control and responsibility, this level of participation does not deserve to be punished under criminal law. In an age when everyone is sharing, tweeting and posting links, this would be too great a restriction on freedom of expression.

13.94 The law should not distinguish in this case between websites where posts can be approved and those where they are not. Material is often only unlawful because of its connection to legal proceedings or suppression orders, which may not be obvious on the face of the material. Further, it has the perverse result that owners who take more care are more likely to be punished.

13.95 These restrictions prevent harm by publication. This can be better served, in the case of online intermediaries, by an effective take-down order regime (see Chapter 14). Making it an offence to fail to take down material better reflects the responsibility of the online intermediary.

13.96 The Commission has considered whether this exclusion should apply if the owner knew that the content was unlawful at the time of original publication, or became aware later. Such publications could still be taken down under the scheme proposed in Chapter 14.

13.97 It could be argued that such a person should also be punished. However, this would make the exclusion less clear.

13.98 The Commission notes that, under the Crimes Act 1958 (Vic), where a person is ‘involved in the commission’ of an offence in certain circumstances, they can be held responsible for the offence. For example, if the person intentionally assists, encourages or directs the commission of an offence, or arranges with another person to commit an offence, the person is taken to have committed that offence.^[99] These provisions apply to both summary and indictable offences.^[100]

13.99 Such a mechanism would better capture the kind of conduct that deserves punishment. For example, if the owner of a public Facebook site arranged with a friend to publish material to identify a victim of a sexual offence, with the intention of assisting the friend to breach the law, the owner of the Facebook site could still be liable for that publication.

13.100 On balance, the Commission considers there is no need to limit the exclusion if it is clear that a person could still be liable under those provisions under the Crimes Act. In practice, it is unlikely the limitation would be of much use.

13.101 The Commission acknowledges the concerns that intermediaries should adopt precautions to prevent the publication of material. It also notes concerns that online intermediaries do not respond quickly to take-down orders.^[101]

13.102 However, this is the role of regulation, not the criminal law. It is better for regulators rather than courts to deal with these concerns through the regulatory framework and take-down codes recommended by the ACCC.^[102]

13.103 The New Zealand example shows another way to resolve such issues. Online intermediaries would meet key stakeholders to address practical issues. This could be discussed as part of the formal relationship that the Victorian Government will set up between the media and the courts in response to the Vincent review.

13.104 For example, Victorian courts could take on the role of notifying Google of all suppression orders. This could be automated through the database discussed in Chapter 16. Court liaison officers or the DPP could also develop a procedure to notify online intermediaries of potential breaches.

Recommendation

114 Online intermediaries and the owners of public websites should be excluded from liability for third-party content under the Commission’s proposed Contempt of Court Act and the Open Courts Act (including those offences that should be moved from the Judicial Proceedings Reports Act). This exclusion should not apply where online intermediaries and the owners of public websites:

• have been given notice of a court order requiring that the material should not be published, and have had a reasonable time to comply with that notice

• are ‘involved in the commission of the offence’ as defined in Part II Division 1 of the Crimes Act.

Should prohibitions and restrictions extend outside Victoria?

Extraterritoriality

13.105 Anyone who can access the internet can read information posted online.^[103] This may make it futile to enforce restrictions on publications in the online age if these restrictions only affect publication within Victoria.^[104] The consultation paper therefore asked whether the restrictions on publication should apply outside Victoria and, if so, how.^[105]

13.106 Normally, Victorian laws only apply to conduct in Victoria. However, Parliament can apply its legislation beyond Victoria if the offence has a link to Victoria.^[106] The Crimes Act typically defines those offences that occur outside Victoria but can be prosecuted in Victoria.^[107]

13.107 For example, under section 80A, there must be a ‘real and substantial link between’ the act or omission and Victoria. This is defined as including:

• where a significant part of the conduct or omission occurred in Victoria, or

• if the conduct or omission occurred outside Victoria, it was intended that substantial harmful effects would arise in Victoria and such effects did arise.^[108]

13.108 The restrictions on publication have a clear link. The harm is the effect on, or on those involved in, court proceedings in Victoria.

13.109 The Open Courts Act already allows a court to apply an order anywhere in Australia. The court must be satisfied that extending it beyond Victoria is needed to achieve the purpose of the order.^[109] In practice, it is still difficult to enforce such orders.

13.110 The Judicial Proceedings Act makes it unlawful to sell or distribute within Victoria publications published outside, if the publication would have breached section 3 of the Act if published in Victoria.^[110]

13.111 This issue is relevant where:

• someone in Victoria publishes information on a site hosted or operated overseas

• someone publishes outside Victoria, but within Australia

• someone outside Australia publishes information overseas that is available in Victoria.

13.112 These may not be strictly cases of extraterritorial jurisdiction. ‘Publication’ in defamation law involves both making material available and someone accessing that material. Under this approach, at least part of the conduct occurs within Victoria.^[111] Further, these are crimes that focus on the results rather than the conduct. Under the common law, such crimes can be punished where those results occur.^[112]

13.113 However, there is still a question of policy as to when Victorian courts should be able to punish people for acts committed outside Victoria.

13.114 This question is most controversial where someone publishes material overseas. The challenges of online publication have led many governments to extend the reach of their laws even though it is difficult to enforce them. It has been argued that this practice means it is no longer useful to distinguish between territorial and extraterritorial claims.^[113]

The challenge of enforcement

13.115 It is difficult to enforce restrictions against people who are not subject to Victorian law. In some cases, the restrictions can be enforced against local distributors.^[114] Companies may also choose not to contest the issue.

13.116 The mutual recognition of suppression orders in Australia has been on the national agenda,^[115] with the Australian Government reviewing suppression order laws across the country.^[116] However, it is unclear if any further work will be done within Australia.

13.117 There have been recent international discussions about the mutual recognition of suppression orders. These included Australia, New Zealand, the United Kingdom, Canada and the United States.^[117] These discussions were noted by the most recent meeting of the Council of Attorneys-General.^[118]

Responses

13.118 Stakeholders disagreed on whether restrictions on publications should be enforced beyond Victoria. Some considered that these restrictions were becoming less relevant.^[119]

13.119 Others considered that there was still value in enforcing the restrictions.^[120] The Criminal Bar Association argued that an ‘order that has some tangible effect is not futile’.^[121] The County Court said there would be some cases where the restrictions could be enforced against overseas publishers. Further, overseas publishers could choose to take down the material anyway.^[122]

13.120 ARTK considered the better response would be to rely more on remedial measures. (See Chapter 10.)^[123]

13.121 The Coroners Court and the Criminal Bar Association supported further work on the mutual recognition and enforcement of suppression orders in Australia.^[124] Others suggested extending this to harmonise all publication restrictions.^[125]

13.122 The Criminal Bar Association supported extending offences beyond Victoria.^[126] Media lawyers and others opposed extending offences, at least beyond Australia, as disproportionate and futile.^[127] They argued that the laws also could not be effectively applied to social media users.^[128]

Commission’s conclusions: extend restrictions beyond Victoria

13.123 Restrictions on publication should apply beyond Victoria in certain circumstances. These restrictions depend on harm being caused in Victoria, and the material must be accessed in Victoria for the harm to occur. Therefore, the link between the restrictions and Victoria is strong.

13.124 What is most important is not the place of publication but whether the material is available in Victoria. This is reflected in the Judicial Proceedings Reports Act, which penalises the sale or distribution into Victoria of offending material.

13.125 With online communication, there is no second step of distribution into Victoria. If you are publishing online, you are (usually) publishing to the world.

13.126 It is important to strike the right balance between the protection from harms and freedom of expression, especially when the conduct affects someone outside Victoria. This should be done by defining the link between the conduct and Victoria, as is done in the Crimes Act.

13.127 It is clear there is no harm if material is published overseas and never accessed in Victoria. On the other hand, a person in Victoria who publishes about a Victorian trial should not escape liability because the material was published on an overseas website.

13.128 The question is where to draw the line. The Commission concludes that criminal liability can be justified in any of the following circumstances:

• A significant part of the conduct, such as the drafting, writing or uploading of the material, occurs in Victoria.

• The publisher intended that the prejudice or harm would occur in Victoria, and such prejudice or harm did occur.

• The publisher was aware of a significant risk the material would circulate in Victoria and defeat the purpose of the restriction, and did not take reasonable steps to restrict such circulation.

13.129 In the first case, a person cannot escape liability only because the material was published outside Victoria. In the second case, a person cannot escape liability if the intention was to prejudice the trial.

13.130 In the second case, a person cannot avoid liability by publishing material elsewhere if the person intended to cause harm (such as a substantial risk of prejudicing a trial) in Victoria, and if such harm was in fact caused. This is a higher standard than that required under the proposed sub judice contempt.^[129] This extension of liability can be justified in this case because the conduct is directed towards Victoria and the harm occurs in Victoria.

13.131 The third case combines two principles. It aims to make a person liable only for the distribution of the material into Victoria, as in the Judicial Proceedings Reports Act. It also limits this only to the extent needed to protect the purpose of the restriction, as in the Open Courts Act.

13.132 The risk must also be ‘significant’ rather than merely ‘substantial’. In many cases, there will be a substantial risk that anything published online could be accessed in Victoria, even if only by a handful of people. A significant risk raises this threshold to make this protection for publishers outside Victoria more meaningful.

13.133 Foreign publishers should be able to publish lawfully to their audiences outside Victoria. For example, a publisher can choose to publish the material only in print form for distribution outside Australia. A publisher could implement geo-blocking to prevent its circulation within Victoria. A search engine could restrict publication only on the version of its search engine for Australian audiences.

13.134 This should also protect the blogger without a substantial audience in Australia. This can be readily determined using common software.

13.135 These mechanisms are not foolproof. Many people know how to avoid geo-blocking. Users can switch between different versions of Google. However, while harm cannot be avoided entirely, this will better balance the respective rights.

13.136 In practice, it will be exceptional for a trial in Victoria to be of interest overseas. Not many overseas publications have sufficient following in Australia to pose a significant risk to a trial. These organisations are usually in a position to manage this risk, using the suggested measures.

Improving enforcement

13.137 The Commission recognises the challenge of enforcing restrictions on publication, even within Australia.

13.138 The Victorian Government has accepted this recommendation and some work has been done already.

13.139 Cooperation with other countries may be coming. Some overseas publishers have already adopted measures, such as geo-blocking, even without a formal presence in Australia.

13.140 Other companies may choose to comply with Australian laws, even when not directly enforceable.^[130] The ACCC’s Digital Platforms inquiry may stimulate further cooperation.

13.141 These developments show that, while extraterritorial enforcement will be a challenge, it is too early to conclude that it is futile. As discussed earlier, the current trend is one of greater cooperation in regulating online content.

13.142 Extending restrictions on publication beyond Victoria is not a perfect solution. Prosecutions are likely to be rare. Efforts at cooperation nationally and beyond will not happen overnight. The more practical measure, therefore, is to pursue a more effective mechanism for taking down material.

Recommendation

115 The offences in the Open Courts Act, including offences currently in the Judicial Proceedings Report Act, and the scandalising and sub judice provisions of the proposed Contempt of Court Act, should be expressed to apply

extra-territorially both within and outside Australia, where any of the following apply:

• a significant part of the conduct, for example, the writing or the uploading of material, occurred in Victoria

• the publication was made with the intention to cause harm in Victoria, and did cause such harm

• the publisher was aware of a significant risk that the material would circulate in Victoria in such a way as to defeat the purpose of the restriction and did not take reasonably available steps to restrict this circulation.

1. Other laws restrict publication of information, but are beyond the scope of this reference: see Chapter 1.

   ↑

2. For a detailed discussion, see Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (November 2019)
   
   <https://www.internetjurisdiction.net/news/release-of-worlds-first-internet-jurisdiction-global-status-report>.

   ↑

3. Ibid Ch 1.

   ↑

4. Submission 27 (Australia’s Right to Know coalition). See also Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (November 2019) 51

   ↑

5. <https://www.internetjurisdiction.net/news/release-of-worlds-first-internet-jurisdiction-global-status-report>.

   ↑

6. European Commission, Proposal for a Regulation of the European Parliament and Council on Preventing the Dissemination of Terrorist Content Online (Report No COM/2018/640, 12 September 2018); G7 Interior Ministers, Combating the Use of the Internet for Terrorist and Violent Extremist Purposes (Outcome Document, 6 April 2019) <https://www.elysee.fr/admin/upload/default/0001/04/287b5bb9a30155452ff7762a9131301284ff6417.pdf>; The Ministry of Foreign Affairs and Trade (NZ), Christchurch Call (Web Page) <https://www.christchurchcall.com/>; French Ministry for Europe and Foreign Affairs, Paris Call for Trust and Security in Cyberspace (Web Page, 11 December 2018) <https://pariscall.international/en/>.

   ↑

7. Tony Romm, ‘50 US States and Territories Announce Broad Antitrust Investigation of Google’, Washington Post (online, 10 September 2019) <https://www.washingtonpost.com/technology/2019/09/09/states-us-territories-announce-broad-antitrust-investigation-google/>. This investigation follows the US Justice Department’s own antitrust review: Kari Paul and agencies, ‘US Justice Department Targets Big Tech Firms in Antitrust Review’, The Guardian (online, 24 July 2019) <https://www.theguardian.com/technology/2019/jul/23/tech-companies-antitrust-review>.

   ↑

8. Her Majesty’s Government (UK), Online Harms White Paper (CP 57, April 2019) <https://www.gov.uk/government/consultations/online-harms-white-paper>.

   ↑

9. Department for Digital, Culture, Media and Sport (UK), Code of Practice for Providers of Online Social Media Platforms (Statutory Code of Practice, 12 April 2019) <https://www.gov.uk/government/publications/code-of-practice-for-providers-of-online-social-media-platforms/code-of-practice-for-providers-of-online-social-media-platforms>.

   ↑

10. Brent Harris, ‘Establishing Structure and Governance for an Independent Oversight Board’, Facebook Newsroom (Web Page, 17 September 2019) < https://about.fb.com/news/2019/09/oversight-board-structure/> .

    ↑

11. Rob Harris, ‘Illegal Offshore Gambling Websites to be Blocked by Australian Internet Providers’, Sydney Morning Herald (online, 11 November 2019) <https://www.smh.com.au/politics/federal/illegal-offshore-gambling-websites-to-be-blocked-by-australian-internet-providers-20191110-p53963.html>.

    ↑

12. Department of Justice (NSW), ‘Open Justice Review’, Justice—Law Reform Commission (Web Page, 3 June 2019) <https://www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Courtinformation/Project_update.aspx>.

    ↑

13. Senate Standing Committee on Environmnent and Communications, Parliament of Australia, ‘Press Freedom’, Parliamentary Business (Web Page) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom>; Joint Committee on Intelligence and Security, Parliament of Australia, ‘Inquiry into the Impact of the Exercise of Law Enforcement and Intelligence Powers on the Freedom of the Press’, Parliamentary Business (Web Page, July 2019) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress>.

    ↑

14. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019).

    ↑

15. Treasury (Cth), Regulating in the Digital Age: Government Response and Implementation Roadmap for the Digital Platforms Inquiry (Report, 12 December 2019) <https://treasury.gov.au/publication/p2019-41708>.

    ↑

16. ‘Review of Model Defamation Provisions’, Department of Communities and Justice (NSW) (Web Page, 29 November 2019) <https://www.justice.nsw.gov.au/defamationreview>.

    ↑

17. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) Recommendation 6.

    ↑

18. Ibid Recommendation 8.

    ↑

19. Ibid Recommendations 9–11.

    ↑

20. Ibid Recommendations 12–13.

    ↑

21. Ibid Recommendation 14.

    ↑

22. Ibid Recommendation 15. Disinformation was defined as false or inaccurate information that is deliberately created and spread to harm a person, social group, organisation or country: 352.

    ↑

23. Treasury (Cth), Regulating in the Digital Age: Government Response and Implementation Roadmap for the Digital Platforms Inquiry (Report, 12 December 2019) <https://treasury.gov.au/publication/p2019-41708>.

    ↑

24. Treasury (Cth), ‘Published Responses’, Digital Platforms Inquiry (Web Page, 2019) <https://consult.treasury.gov.au/structural-reform-division/digital-platforms-inquiry/>

    ↑

25. Treasury (Cth), Regulating in the Digital Age: Government Response and Implementation Roadmap for the Digital Platforms Inquiry (Report, 12 December 2019) <https://treasury.gov.au/publication/p2019-41708>.

    ↑

26. Ibid.

    ↑

27. ‘Review of Model Defamation Provisions’, Department of Communities and Justice (NSW) (Web Page, 29 November 2019) <https://www.justice.nsw.gov.au/defamationreview>.

    ↑

28. Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019) <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf>.

    ↑

29. Australasian Parliamentary Counsel’s Committee, Council of Attorneys-General, Model Defamation Amendment Provisions (Draft for public consultation) (Report Draft d15, 2019) <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/consultation-draft-of-mdaps.pdf>.

    ↑

30. Council of Attorneys-General, Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) 10–12, Recommendation 3 <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>.

    ↑

31. Ibid 20–2, Recommendation 11.

    ↑

32. Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019) Question 15 <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf>.

    ↑

33. Council of Attorneys-General, Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) 4 <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>.

    ↑

34. For an excellent summary of the issues, see Internet & Jurisdiction Policy Network, Berlin Roadmap: Secretariat Summary and I&J Programs Work Plans (Speech, 3rd Global Conference, 3–5 June 2019) <https://www.internetjurisdiction.net/uploads/pdfs/Berlin-Roadmap-and-Secretariat-Summary-3rd-Global-Conference-of-the-Internet-Jurisdiction-Policy-Network.pdf>; Dan Jerker B Svantesson, ‘Internet & Jurisdiction Global Status Report’, (November 2019) <https://www.internetjurisdiction.net/news/release-of-worlds-first-internet-jurisdiction-global-status-report>.

    ↑

35. ‘NZ Suppression Orders May Become Enforceable Overseas’, Otago Daily Times (online, 10 August 2019) <https://www.odt.co.nz/news/national/nz-suppression-orders-may-become-enforcable-overseas>.

    ↑

36. Submission 28 (Director of Public Prosecutions).

    ↑

37. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 155–60 [10.26]–[10.64].

    ↑

38. Ibid 156–7 [10.35]–[10.43].

    ↑

39. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 160, Question 43.

    ↑

40. Open Courts Act 2013 (Vic) s 3 (definition of ‘publish’).

    ↑

41. The definition excludes publications ‘for a purpose connected with a judicial proceeding’. This issue is dealt with in Chapter 12.

    ↑

42. Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 373 [6.150], citing N Lowe and B Sufrin, The Law of Contempt (Butterworths, 3rd ed, 1996) 85.

    ↑

43. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 157 [10.44]. The Law Commission of England and Wales took the initial view that there are no hard and fast rules in this area, and the law should be left to develop: Law Commission (England and Wales), Contempt of Court (Consultation Paper No 209, 2012) 44 [3.29].

    ↑

44. Australian Law Reform Commission, Family Law for the Future—An Inquiry into the Family Law System (Report No 135, March 2019) 439–42 [14.65]–[14.76], Recommendation 56.

    ↑

45. News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 [63]–[65] (Warren CJ and Byrne AJA); R v Hinch (No 1) [2013] VSC 520, [54]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, [43] (Basten JA, Bathurst CJ and Whealy JA agreeing).

    ↑

46. News Digital Media Pty Ltd v Mokbel [2010] VSCA 51.

    ↑

47. Council of Attorneys-General (NSW), Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) 10–12, Recommendation 3 <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>.

    ↑

48. Submissions 18 (Commercial Bar Association Media Law Section Working Group) (referring to the Open Courts Act and the Judicial Proceedings Reports Act only), 20 (Criminal Bar Association), 23 (MinterEllison Media Group), 28 (Director of Public Prosecutions), 31 (County Court of Victoria).

    ↑

49. Submissions 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition). The uniform defamation laws do not include a statutory definition of ‘publication’, and instead rely on the common law definition.

    ↑

50. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association).

    ↑

51. Children, Youth and Families Act 2005 (Vic) s 3(1).

    ↑

52. Submission 14 (Children’s Court of Victoria).

    ↑

53. Submission 28 (Director of Public Prosecutions).

    ↑

54. Submission 31 (County Court of Victoria).

    ↑

55. Submission 20 (Criminal Bar Association).

    ↑

56. Submissions 20 (Criminal Bar Association), 28 (Director of Public Prosecutions).

    ↑

57. Submissions 17 (Dr Denis Muller), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group); Consultation 5 (Media lawyers and academics on contempt by publication).

    ↑

58. Submission 18 (Commercial Bar Association Media Law Section Working Group); Consultation 5 (Media lawyers and academics on contempt by publication).

    ↑

59. Submissions 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition).

    ↑

60. The common law definition of publication in defamation requires publication only to some person other than the plaintiff, and not necessarily to a ‘section of the public’: LexisNexis, Halsbury’s Laws of Australia (online, 19 September 2019) 145 Defamation, ‘2 Cause of Action in Defamation’ [145–330].

    ↑

61. Courts have considered in other contexts the distinction between ‘public’ and ‘private’ communications, such as in discrimination law: Australian Law Reform Commission, Family Law for the Future—An Inquiry into the Family Law System (Report No 135, March 2019) 440 [14.68].

    ↑

62. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 160, Question 46.

    ↑

63. Organisation for Economic and Cultural Development (OECD), The Economic and Social Role of Internet Intermediaries (Report, April 2010) 9 <www.oecd.org/internet/ieconomy/44949023.pdf>. This definition has also been adopted in Manilaprinciples.org, Manila Principles on Intermediary Liability (Background Paper, 30 May 2015) 6 <https://www.eff.org/files/2015/07/08/manila_principles_background_paper.pdf>; Rebecca Mackinnon et al, Fostering Freedom Online: The Role of Internet Intermediaries (UNESCO, 2014) 19 <https://unesdoc.unesco.org/ark:/48223/pf0000231162>.

    ↑

64. Rebecca Mackinnon et al, Fostering Freedom Online: The Role of Internet Intermediaries (UNESCO, 2014) 21 <https://unesdoc.unesco.org/ark:/48223/pf0000231162>.

    ↑

65. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 41.

    ↑

66. Ibid 166.

    ↑

67. Ibid 170–3.

    ↑

68. Rebecca Mackinnon et al, Fostering Freedom Online: The Role of Internet Intermediaries (UNESCO, 2014) 19 <https://unesdoc.unesco.org/ark:/48223/pf0000231162>.

    ↑

69. For a detailed typology, see Internet & Jurisdiction Policy Network, Operational Approaches—Norms, Criteria, Mechanisms (Report, April 2019) 20–6 <https://www.internetjurisdiction.net/uploads/pdfs/Papers/Content-Jurisdiction-Program-Operational-Approaches.pdf>.

    ↑

70. See, eg, Centre for Internet and Society, Stanford Law School, World Intermediary Liability Map (Web Page) <https://wilmap.law.stanford.edu/>; Internet & Jurisdiction Policy Network, Operational Approaches—Norms, Criteria, Mechanisms (Report, April 2019) <https://www.internetjurisdiction.net/uploads/pdfs/Papers/Content-Jurisdiction-Program-Operational-Approaches.pdf>.

    ↑

71. Internet & Jurisdiction Policy Network, Berlin Roadmap: Secretariat Summary and I&J Programs Work Plans (Speech, 3rd Global Conference, 3–5 June 2019) 12 <https://www.internetjurisdiction.net/uploads/pdfs/Berlin-Roadmap-and-Secretariat-Summary-3rd-Global-Conference-of-the-Internet-Jurisdiction-Policy-Network.pdf>.

    ↑

72. See, eg, Internet & Jurisdiction Policy Network, I&J Retrospect Database (Web Page) <https://www.internetjurisdiction.net/publications/retrospect>; Centre for Internet and Society, Stanford Law School, World Intermediary Liability Map (Web Page) <https://wilmap.law.stanford.edu/>; Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (November 2019) <https://www.internetjurisdiction.net/news/release-of-worlds-first-internet-jurisdiction-global-status-report>; Internet & Jurisdiction Policy Network, Operational Approaches—Norms, Criteria, Mechanisms (Report, April 2019) <https://www.internetjurisdiction.net/uploads/pdfs/Papers/Content-Jurisdiction-Program-Operational-Approaches.pdf>; Rebecca Mackinnon et al, Fostering Freedom Online: The Role of Internet Intermediaries (UNESCO, 2014) <https://unesdoc.unesco.org/ark:/48223/pf0000231162>.

    ↑

73. Manilaprinciples.org, Manila Principles on Intermediary Liability (Background Paper, 30 May 2015) 6 <https://www.eff.org/files/2015/07/08/manila_principles_background_paper.pdf>.

    ↑

74. Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc A/HRC/38/35 (6 April 2018) 19–20 [66]–[68].

    ↑

75. Minister for Justice (NZ), ‘Justice Minister Welcomes Google’s Change of Heart’ (Media Release, 5 July 2019) <https://www.beehive.govt.nz/release/justice-minister-welcomes-google%E2%80%99s-change-heart>, and the attached letter.

    ↑

76. Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40 Sydney Law Review 469, 469.

    ↑

77. This is defined as a person who hosts or proposes to host internet content in Australia, and ‘internet content’ is defined as meaning information kept on a data storage device and accessed, or available for access, using an internet carriage service. It excludes ordinary email or information transmitted in the form of a broadcasting service: Broadcasting Services Act 1992 (Cth) sch 5 cl 3.

    ↑

78. Ibid sch 5 cl 91. Laws can, however, be exempted from the Act: cl 91(2).

    ↑

79. In a recent case, Google successfully had set aside an order referring it for contempt for failing to take down defamatory material published on Google Reviews, on the basis that it had not had effective notice: KT v Google LLC [2019] NSWSC 1015. This was not a case of sub judice contempt but rather a form of disobedience contempt.

    ↑

80. Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40 Sydney Law Review 469, 496.

    ↑

81. The Victorian Court of Appeal considered that this would generally be the case in Google Inc v Trkulja [2016] VSCA 333 [349], [353], [357], (2016) 342 ALR 504. The High Court held that this was not an appropriate way to proceed, as this was a mixed question of fact and law: Trkulja v Google LLC [2018] HCA 25 [38]–[39], (2018) 263 CLR 149.

    ↑

82. Voller v Nationwide News Pty Ltd [2019] NSWSC 766.

    ↑

83. Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019) [5.49]–[5.64] <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf>.

    ↑

84. Council of Attorneys-General, Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) 4 <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>.

    ↑

85. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) Recommendation 8.

    ↑

86. Treasury (Cth),Regulating in the Digital Age: Government Response and Implementation Roadmap for the Digital Platforms Inquiry (Report, 12 December 2019) <https://treasury.gov.au/publication/p2019-41708>.

    ↑

87. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) [2.65] Recommendation 6; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) Recommendation 9. These defences are not limited to intermediaries, but would extend to others in similar positions such as distributors. There is a minor difference between the two defences, in that the NZ recommendation does not require proof that the intermediary did not have control over the content.

    ↑

88. Contempt of Court Act 2019 (NZ) s 7(4)(b).

    ↑

89. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition); Consultation 5 (Media lawyers and academics on contempt by publication). Others expressed more general concern about the disproportionate effect on online intermediaries: Submission 19 (Forgetmenot Foundation).

    ↑

90. Consultation 5 (Media lawyers and academics on contempt by publication). See Defamation Act 2013 (UK) s 5.

    ↑

91. Consultation 17 (Victorian Bar).

    ↑

92. It identified the relevant intermediaries as internet service providers or internet content hosts: Submission 22 (Law Institute of Victoria).

    ↑

93. Ibid.

    ↑

94. Submission 20 (Criminal Bar Association).

    ↑

95. Submissions 19 (Forgetmenot Foundation Inc), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition). The latter two submissions cited Voller v Nationwide News Pty Ltd [2019] NSWSC 766. This was a defamation case in which the media companies had been held responsible for user comments on their Facebook pages.

    ↑

96. Submission 20 (Criminal Bar Association).

    ↑

97. Submission 27 (Australia’s Right to Know coalition).

    ↑

98. See, eg, Trkulja v Google LLC [2018] HCA 25, (2018)263 CLR 149.

    ↑

99. Ibid pt II div 1.These are also discussed in Chapter 4.

    ↑

100. Crimes Act 1958 (Vic) s 324(1).

     ↑

101. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 264–74.

     ↑

102. Ibid Recommendations 6, 8.

     ↑

103. See Dow Jones & Co Inc v Gutnick [2002] HCA 56 [39] (Gleeson CJ, McHugh, Gummow and Hayne JJ), (2002) 210 CLR 575.

     ↑

104. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 162 [10.71]–[10.77].

     ↑

105. Ibid 164, Question 47.

     ↑

106. Australia Act 1986 (Cth) s 2(1); DPP v Sutcliffe [2001] VSC 43 [43].

     ↑

107. Offences that can be prosecuted beyond Victoria include: obtaining property or financial advantage by deception; false accounting and falsification of documents; false statements by company directors; suppression of documents; and blackmail: Crimes Act 1958 (Vic) ss 81–7.

     ↑

108. See also ibid s 321A. This extends the crime of conspiracy to offences against laws outside Victoria, if the necessary elements of the offence include elements which, if present or occurring in Victoria, would constitute a Victorian offence, and at least one of the parties to the conspiracy was in Victoria at the time of the agreement. It also extends the crime of conspiracy to conspiracies made by parties outside Victoria in cases where the effect of the agreement is to pursue conduct that will necessarily amount to or involve a commission of a Victorian offence.

     ↑

109. Open Courts Act 2013 (Vic) ss 21(2)–(3), 26(3)–(4).

     ↑

110. Judicial Proceedings Reports Act 1958 (Vic) s 3(2).

     ↑

111. Dow Jones & Co Inc v Gutnick [2002] HCA 56 [25]–[28], [44].

     ↑

112. Thompson v The Queen (1989) 169 CLR 1, 24–25 (Brennan J).

     ↑

113. Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (November 2019) 57–8 <https://www.internetjurisdiction.net/news/release-of-worlds-first-internet-jurisdiction-global-status-report>.

     ↑

114. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 162 [10.75].

     ↑

115. Ibid 163 [10.80]–[10.83].

     ↑

116. Attorney-General’s Department (Cth), Council of Attorneys-General, ‘Communiqué—Council of Attorneys-General’ (23 November 2018) <https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Documents/Council-of-Attorneys-General-communique-November-2018.pdf>.

     ↑

117. ‘NZ Suppression Orders May Become Enforceable Overseas’, Otago Daily Times (online, 10 August 2019), 34 <https://www.odt.co.nz/news/national/nz-suppression-orders-may-become-enforcable-overseas>.

     ↑

118. Attorney-General’s Department (Cth), Council of Attorneys-General, ‘Communiqué—Council of Attorneys-General’ (23 November 2018) <https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Documents/Council-of-Attorneys-General-communique-November-2018.pdf>

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119. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston); Consultation 17
     
     (Victorian Bar).

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120. Consultation 17 (Victorian Bar).

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121. Submission 20 (Criminal Bar Association).

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122. Consultation 24 (County Court of Victoria).

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123. Submission 27 (Australia’s Right to Know coalition).

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124. Submissions 20 (Criminal Bar Association), 21 (Coroners Court of Victoria).

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125. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

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126. Submission 20 (Criminal Bar Association).

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127. Submissions 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 19 (Forgetmenot Foundation Inc), 23 (MinterEllison Media Group). The Media Law Section only opposed extending the application of offences beyond Australia.

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128. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

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129. See Chapter 10.

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130. Dan Jerker B Svantesson, ‘A “Layered Approach” to the Extraterritoriality of Data Privacy Laws’ (2013) 3(4) International Data Privacy Law 278, 286.

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