Broadcasting Services Act 1992 (Cth), Schedule 5, Cl 91(1)

Clause 91(1) of Schedule 5 of the Broadcasting Services Act 1992 (Cth) provides a general limitation of liability for internet service providers and content hosts from Australian State and Territory laws for material hosted on behalf of another. On its face, Cl 91(1) appears to provide a strong immunity similar in effect to Section 230 of the US Communications Decency Act. The Federal clause renders any State or Territory legislation and any rule of common law or equity invalid to the extent that it: subjects internet hosts or ISPs to criminal or civil liability for hosting or transmitting content where the host is not aware of the nature of the content; or requires an internet host or ISP to monitor, make inquiries about, or keep records of, content hosted or transmitted. In practice, Cl 91(1) has not been greatly tested, and its operation is still unclear. Clause 91(1) provides little additional protection from the common law tort of defamation, as amended by legislation of Australian States and Territories, which applies to anyone who ‘publishes’ a defamatory imputation. While there are defences for ‘innocent dissemination’ which will apply to internet intermediaries who are publishers, these defences evaporate once the intermediary is put on notice, at which point Cl 91(1) will no longer apply. Recently, the provision was successfully relied upon in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim 2012 NSWCCA 125 (13 June 2012) to invalidate overly broad suppression orders which may have required intermediaries to prevent access to prejudicial material, wherever that material may be hosted globally.