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Specialist Guide to the

Global Leaders in Media Law Practice

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The 2021 Australian media law landscape has been dominated by developments in defamation law, with a slew of high-profile cases and both judicial and legislative attempts to define the scope of liability and publication in the digital age.


The High Court provided its view on publication in the context of social media posts in the long-awaited decision of Fairfax v Voller [2021] HCA 27. It affirmed that operators of social media accounts were the publishers of comments by third parties on their posts, even though they may not have been aware of the comments.


In addition, the majority found against the appellants’ contention that publication must be intentional. The impact of this judgment extends beyond media companies and includes all people and organisations that maintain their own websites and social media pages.


In the final days of 2021, the Australian Government released an exposure draft of what is termed “anti-trolling” legislation (Social Media (Anti-Trolling) Bill 2021), a primary purpose of which appears to address the implications of the Voller case. The Government has commented that the Voller case may result in social media accounts being closed or comments turned off, which could have a chilling effect on free speech and has indicated that from a policy perspective it does not consider it appropriate for owners of social media pages to be liable for defamatory comments posted by others.


The exposure draft of the bill provides that a person who maintains or administers a social media page will not be a publisher of comments posted on that page, thus absolving those who administer or maintain social media accounts from liability for defamation claims arising from third party comments. The exposure draft is open to submission and will be the subject of report by a Select Committee on Social Media and Online Safety in early 2022.

Major defamation law reforms have also continued, with Stage 1 of the amendments to Australia’s model defamation provisions which were previously approved by the Council of Attorneys-General coming into force in NSW on 1 July 2021.


Several changes affect the ability to commence proceedings such as the requirement that mandatory concerns notices be issued and a ‘serious harm’ threshold is met. Other changes introduce new defences for public interest and peer-reviewed matters in academic or scientific journals. The application of these new defences will be informed by analogous provisions and common law developments in the UK.


Although the first round of amendments provided some clarification for online publications through the ‘single publication’ rule, there will be a greater focus on search engines and social media in Stage 2 of the reforms that have been set for consideration in 2022.


Other major developments in the social media space continued to arise from the ACCC’s Digital Platforms Report, notably the News Media Bargaining Code which passed in 2021 and required digital platforms to enter into a process of arbitration to determine the amount they would pay news media for the use of content produced by those business. So far, major media companies have struck their own deals with the major platforms outside the legislative framework.



Written by Rebecca Dunn

Partner, Media and IP

Gilbert + Tobin

TIER 1

With broad industry coverage, Ashurst works across segments. The team assists with matters involving e-commerce, data protection, intellectual property, gaming and commercial contracts. Lawyers advise on transactional and regulatory matters, mergers and acquisitions, joint ventures and structured finance.


Baker McKenzie’s Sydney office has a dedicated media and content practice group that works with new and established media entities in free-to-air television, pay television, radio, online service providers and multimedia companies. The firm works on matters relating to defamation, pre-broadcast contempt, intellectual property and information technology.


Gilbert + Tobin is one of Asia Pacific’s leading firms for media law. The practice is known for advising on distribution and licensing of digital content, social media and digital platform matters. The team acts for recording companies, film industry associations and studios. In highlighted work lawyers advised the ABC on the renewal of its agreement with Broadcast Australia for its analogue transmission services nationwide. The media division works closely with the firm’s M&A team on restructurings, media public listings and private equity acquisitions and divestments.


MinterEllison is highly reputed for its world class defamation law advice. Clients describe lawyers as “disciplined, calm and able to react quickly to changing circumstances”. The team works with clients on cross-media ownership, copyright licensing, broadcasting and online content regulation. The firm is widely recognised for his leadership in cases of defamation, and prepublication advice. This experience includes acting for clients including Fairfax, Bloomberg, Seven Media and Network Ten.


TIER 2

Atanaskovic Hartnell’s corporate and commercial department is focussed on transactional,

regulatory and disputes within the TMT sector. The team advises on convergence of telecommunications and media, foreign investment restrictions, spectrum allocation and reallocation, carriage and content services and datacasting. Other areas of specialisation include joint ventures, licence rights and obligations.


With a broadcasting specialisation, Corrs Chambers Westgarth has leading expertise in communications, media, entertainment and technology. The firm’s past work on corporate transactional cases includes Southern Cross Media’s takeover of Austereo Group Limited in a AUD724 million deal. Lawyers have notable experience advising on broadcasting, spectrum licensing and commercial radio.


Webb Henderson specialises in high value corporate, commercial and regulatory matters. The ffirm is best known for its emphasis on the communications sector. Ara Margossian is highlighted by peers for his experience advising broadcasters and telecom operators. In representative work the team assisted Foxtel, a leading pay-television provider, with its launch of triple play services in Australia.


TIER 3

Allens is recognised for its work in mergers, acquisitions and joint ventures in the media and technology sectors. The teams has advised on numerous media licensing and procurement projects in Australia and Asia. Among work, the team acted for Disney on mobile application development agreements and commercial and licensing arrangements. Lawyers also advised NBCUniversal on corporate transactions.   


Clayton Utz combines commercial and regulatory experience. The firm has a strong position in the national market and is noted for its work on corporate and transactional issues involving mergers and acquisitions. The team advises on IT outsourcing, copyright and other intellectual property issues and commercial litigation.


Herbert Smith Freehills is known for its work in disputes and risk management in all areas of the TMT sector. The team includes litigators, arbitrators and mediators. Regularly advising broadcasters and content providers, lawyers are adept case handlers with experience working on disputes about ownership and control, access to networks, regulation and competition, content rights and agreements. Clients include BskyB, Microsoft and Telstra.


Full service firm King & Wood Mallesons specialises in all aspects of TMT with particular emphasis on the entertainment sector. Lawyers have substantial cross-border capabilities and advise on national broadband rollouts, regulatory reform and compliance, network access agreements and disputes. The firm represents clients in broadcasting, print, social media and gaming sectors. In representative work, the team acted for Universal Music on its acquisition of EMI’s recorded music business and its subsequent divestiture sale of nine recorded music assets.


McCullough Robertson lawyers have more than two decades of experience assisting broadcasters with cases of defamation and contempt. Team experience includes advising on music, film production, television licensing and production contracts and publishing agreements.


TIER 4

Addisons groups media and intellectual property providing services across a range of media segments. The team advises on contractual and strategic matters, including pre-publication clearances, advertising contracts, sponsorship and talent agreements. Other aspects of work include digital media and regulatory issues. The firm specialises in commercial and litigation matters respectively.


Maddocks has global experience advising on digital matters including content application deals with Fox Sports and online marketing and promotional strategies. The practice is also recognised for its work involving broadcasting, recording and publishing clients from regions including Japan, Europe and the US.


Top

Ranking and editorials

TIER 1

Ashurst

Baker McKenzie

Gilbert + Tobin

MinterEllison

 

TIER 2

Atanaskovic Hartnell

Banki Haddock Fiora

Bird & Bird

Corrs Chambers Westgarth

Webb Henderson


TIER 3

Allens

Clayton Utz

Herbert Smith Freehills

Johnson Winter & Slattery

King & Wood Mallesons

McCullough Robertson

 

TIER 4

Addisons

DLA Piper

Macpherson Kelley

Maddocks

Mark O’Brien Legal

Simpsons Solicitors


TIER 5

HWL Ebsworth

Kennedys

Norton Rose Fulbright

Piper Alderman

Thomson Geer



 

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