Media Law in Australia

The Constitutional Framework

Media law in Australia operates without an express guarantee of freedom of the press or freedom of speech. The High Court has implied a freedom of political communication from the system of representative government established by the Constitution.

The foundational case is Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, in which the Brennan Court held that the implied freedom is a constitutional limitation on legislative and executive power derived from sections 7 and 24 of the Constitution, requiring that Parliament be “directly chosen by the people.”

In McCloy v New South Wales (2015) 257 CLR 178, the French Court refined the test: (1) whether the law burdens the implied freedom; (2) whether it serves a legitimate purpose; and (3) whether it is reasonably appropriate and adapted (proportionate) to that purpose. In Brown v Tasmania (2017) 261 CLR 328, the Court struck down Tasmanian protest restrictions under this framework.

Defamation Law

Defamation law in Australia was substantially harmonised through the adoption of uniform legislation across all states and territories — the Defamation Act 2005 enacted in each jurisdiction. The uniform Act codified the common law of defamation while introducing significant reforms to modernise the law.

The elements of defamation require the plaintiff to establish: (1) publication of defamatory matter; (2) identification of the plaintiff; and (3) damage to reputation. A statement is defamatory if it would cause ordinary reasonable people to think less of the plaintiff, shun them, or expose them to hatred, contempt, or ridicule.

The 2021 Reforms

In 2021, the Council of Attorneys-General implemented significant reforms including: a “serious harm” threshold (s 10A); a reduction of the limitation period from three years to one year (s 14B); a new defence of “public interest” (s 29A); a “single publication rule” (s 12A); and new defences for peer-reviewed scientific journals (s 30A) and honest opinion (s 31).

The Defence of Truth

The core defence is justification — truth under s 25 — requiring proof that the imputations are substantially true. The defence of contextual truth (s 26) allows proof that additional imputations are true and that the publication does not further harm the plaintiff’s reputation. The defence of honest opinion (s 31) protects statements of opinion genuinely held, based on proper material, and relating to a matter of public interest.

Choice of Law and Internet Jurisdiction

The complexity of defamation law in the digital age was highlighted in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, where the High Court held that a defamation action could be brought in Victoria in respect of an article published on the internet in the United States, on the basis that the publication occurred where the article was downloaded and the plaintiff’s reputation was harmed. The “single publication rule” introduced in the 2021 reforms addresses some of the concerns raised by Gutnick, providing that the limitation period runs from the date of first publication regardless of subsequent access.

Broadcasting Regulation

The Broadcasting Services Act 1992 (Cth) is the primary statute regulating the broadcasting industry in Australia. The Act establishes a three-tier regulatory framework: (1) “open narrowcasting” services subject to minimal regulation; (2) commercial broadcasting services subject to extensive content and ownership regulation; and (3) community broadcasting services regulated through a system of licences.

The Australian Communications and Media Authority (“ACMA”) is the independent statutory authority responsible for enforcing the broadcasting regulatory framework. ACMA’s regulatory functions include: granting and renewing broadcasting licences; enforcing content standards (including the Commercial Television Industry Code of Practice and the Commercial Radio Australia Codes of Practice); and monitoring compliance with ownership and control rules, including the “reach rule” and the “two-out-of-three rule” (prohibiting a person from controlling more than two of the three regulated media platforms of commercial television, commercial radio, and associated newspapers in a licence area).

The National Broadcasting Service

The Australian Broadcasting Corporation (“ABC”) and the Special Broadcasting Service (“SBS”) are established by their respective Charters — the Australian Broadcasting Corporation Act 1983 (Cth) and the Special Broadcasting Service Act 1991 (Cth). The ABC Charter requires the Corporation to provide “innovative and comprehensive” broadcasting services of a “high standard” that “contribute to a sense of national identity.” The SBS Charter requires the provision of multilingual and multicultural services that reflect the diversity of Australian society.

Both the ABC and SBS are statutory corporations funded directly by the Commonwealth Parliament and governed by independent Boards. Their editorial independence is protected by legislation, though they remain subject to ACMA’s regulatory oversight and the jurisdiction of the Australian Communications and Media Authority.

Online Safety Regulation

The Online Safety Act 2021 (Cth), administered by the eSafety Commissioner, provides a three-tier complaints system for: (1) cyber-bullying material targeting children; (2) cyber-abuse material targeting adults; and (3) image-based abuse material. The Commissioner may issue removal notices and service provider notices requiring platforms to address harmful content, and may regulate age-inappropriate content accessible to children.

The News Media Bargaining Code

The News Media and Digital Platforms Mandatory Bargaining Code (Part IVBA of the Competition and Consumer Act 2010 (Cth)) requires designated digital platforms to negotiate in good faith with Australian news businesses for compensation for news content, with final offer arbitration before the ACCC if negotiations fail. The Code was the first such framework internationally and influenced the development of similar regimes in Canada, the UK, and the EU.

In February 2021, Meta temporarily blocked news content in Australia before reaching commercial agreements. The Treasurer’s designation powers under Part IVBA serve as leverage to encourage voluntary bargaining.