Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Division 9.2.2A Exemptions from liability for digital intermediaries
122B Definitions—div 9.2.2A
In this division:
"caching service" means an online service whose principal function is to provide automatic, intermediate and temporary storage of content for the purpose of making the onward electronic transmission of the content more efficient for its users.
Example
a service for temporarily and automatically storing files that are most frequently downloaded by users of a website to speed up the download time for the files
"conduit service" means an online service whose principal function is to enable its users to access or use networks or other infrastructure to connect to, or send or receive data by means of, the internet.
Examples
1 a service provided by an internet service provider enabling its users to connect to the internet
2 an internet-based service enabling its users to send emails or send text messages to other people
"search engine" means a software application or system designed to enable its users to search for content on the internet.
"search engine provider", for a search engine, means a person who maintains, or provides users with access to the search functions of, the search engine.
"search result" means a result generated by a search engine that is limited to identifying a webpage on which content is located by reference to 1 or more of the following:
(a) the title of the webpage;
(b) a hyperlink to the webpage;
(c) an extract from the webpage;
(d) an image from the webpage.
"storage service" means an online service, other than a caching service, whose principal function is to enable its users to store content remotely.
Example
an internet-based cloud service enabling its users to store documents, videos or photographs for later retrieval
122C Exemption for digital intermediaries providing caching, conduit or storage services
(1) A digital intermediary is not liable for defamation for the publication of digital matter if the intermediary proves—
(a) the matter was published using 1 or more of the following services provided by the intermediary:
(i) a caching service;
(ii) a conduit service;
(iii) a storage service; and
(b) the intermediary's role in the publication was limited to providing 1 or more of the services mentioned in paragraph (a); and
(c) the intermediary did not do any of the following:
(i) initiate the steps required to publish the matter;
(ii) select any of the recipients of the matter;
(iii) encourage the poster of the matter to publish the matter;
(iv) edit the content of the matter, whether before or after it was published;
(v) promote the matter, whether before or after it was published.
(2) Subsection (1) (c) does not apply in relation to action taken because it is required by or under a law of an Australian jurisdiction or an order of an Australian court or Australian tribunal.
Example
action taken to comply with a code of conduct or other document regulating conduct that a digital intermediary is required to comply with by a law of an Australian jurisdiction
(3) Subsection (1) applies regardless of whether the digital intermediary knew, or ought reasonably to have known, the digital matter was defamatory.
122D Exemption for search engine providers
(1) A search engine provider for a search engine is not liable for defamation for—
(a) the publication of digital matter comprised of search results if the provider's role was limited to providing an automated process for the user of the search engine to generate the results; or
(b) the publication of digital matter to which the search results provide a hyperlink if the provider's role in the publication of the matter is limited to the role mentioned in paragraph (a).
(2) Subsection (1) does not apply in relation to search results, or to digital matter to which the search results provide hyperlinks, to the extent the results are promoted or prioritised by the search engine provider because of a payment or other benefit given to the provider by or on behalf of a third party.
(3) Subsection (1) applies regardless of whether the search engine provider knew, or ought reasonably to have known, the digital matter was defamatory.
122E Early determination of digital intermediary exemptions
(1) The judicial officer in defamation proceedings—
(a) is to determine whether a defendant has a digital intermediary exemption; and
(b) is to determine whether a digital intermediary exemption is established as soon as practicable before the trial for the proceedings commences unless satisfied that there are good reasons to postpone the determination to a later stage of the proceedings; and
(c) may make any orders the judicial officer considers appropriate concerning the determination of the issue, including dismissing the proceedings if satisfied the digital intermediary exemption is established.
(2) Without limiting subsection (1)—
(a) the following matters are relevant in deciding whether there are good reasons to postpone the determination of whether a digital intermediary exemption is established to a later stage of the proceedings:
(i) the cost implications for the parties;
(ii) the resources available to the court at the time;
(iii) the extent to which technical or scientific issues are raised in the proceedings;
(iv) the extent to which establishing the digital intermediary exemption is linked to other issues for determination during the trial for the proceedings; and
(b) the judicial officer may determine a digital intermediary exemption is established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are sufficient to establish the exemption.
(3) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings, whether before or after the trial for the proceedings commences.
(4) In this section:
"digital intermediary exemption" means an exemption from liability for defamation mentioned in section 122C or 122D.