Curtis, Chris --- "Internet defamation" [2016] PrecedentAULA 5; (2016) 132 Precedent 16

INTERNET DEFAMATION

By Chris Curtis

Over a decade ago, the High Court in Dow Jones v Gutnick (2002) 210 CLR 575 put beyond doubt that the internet was not a ‘special law zone’ for defamation, and that Australian courts should apply defamation law to material published and read in Australia via the internet, regardless of whether it was being transmitted from overseas servers and made available worldwide simultaneously. The Court rejected suggestions that material published via the internet should be treated as a special category of publication. As the majority noted, ‘the problem of widely disseminated communications is much older than the internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas.’^[1]

The law of defamation has been flexibly moulded and applied, based on some fundamental principles, to all manner of human interactions. It has been applied to publications through conversations and meetings, books, newspapers, television and radio broadcasts, signs on walls and noticeboards. The internet may introduce new frontiers in defamation law, but defamation law principles have been readily adapted to internet-based publications.

Defamation over the internet is a very broad topic. This article will focus on some practical issues of significance for practitioners that are illustrated by recent cases, which are unique to the internet.

GENERAL MATTERS

An action for defamation seeks relief for defamatory publications that have exposed the plaintiff to damage to their reputation. In Dow Jones v Gutnick, the High Court held that publication of defamatory material via the internet can give rise to a cause of action for defamation within Australia in places where the material has been downloaded and viewed by readers. This is because defamation law is concerned with the protection of reputation, and harm to reputation occurs at and when defamatory material is read, regardless of where it originated or was transmitted from.

Defamation law has been modified by largely uniform legislation in every state and territory; in Queensland, by the Defamation Act 2005 (Qld).^[2] These Acts modify defamation law (and set out some specific defences), but do not codify defamation law. Case law continues to be the source of most of the relevant principles in defamation law and, in the foreseeable future, courts will continue to adapt and work out how defamation law should apply in novel situations.

At common law, there was no impediment to a company or other body corporate suing in defamation in its own right. However, damages for a corporation are limited, as a corporation cannot have injured feelings, only an injured reputation in trade or business. The uniform defamation legislation, however, subject to limited exceptions, abolished any cause of action in defamation for corporations.^[3] This means that a corporation defamed over the internet will need to consider alternative causes of action such as actions under the Australian Consumer Law for misleading and deceptive conduct (if it can establish that the conduct was in trade or commerce – for example, conduct by a trade rival); or perhaps the tort of injurious falsehood (if it can establish the relevant publication was made maliciously).

An important exception is companies that do not have the object of financial gain or which have fewer than 10 employees, and which are not public bodies. These can retain a cause of action in defamation.^[4] This is notable because corporations operating small businesses such as restaurants, small accommodation providers, and real estate agents are now heavily reviewed and often rated on many online websites or business classifieds. Also, if they maintain a Facebook page, common experience is that they are exposed to negative or critical user reviews. In these circumstances, a company operating a small business or charitable venture may retain protection under defamation law.

THE GENERAL POSITION IN RELATION TO DEFAMATION OVER THE INTERNET

Where material is simply published on the internet by the author and made available to the public at large in the same way as a newspaper or book can be made available to the public at large, this does not raise any new or novel issues. Articles published in the printed Sydney Morning Herald or on the Sydney Morning Herald website, which contain the same content and are published to the same body of potential readers, will be treated in the same way (subject to any relevant variation between editions).^[5] A recent, well-publicised example was the former Federal Treasurer, Mr Joe Hockey, suing Fairfax Media Publications Pty Limited in defamation for the articles titled ‘Treasurer for Sale’ (etc), which were published in various printed and online forms. Aside from noting the slight differences between the content in the print and online versions, the print and online version of the article were analysed by the court in the same way.^[6]

Likewise, a number of plaintiffs have been successful in proceedings for defamation in relation to defamatory Facebook posts published to an audience including family and friends.^[7] Plaintiffs have also been successful in suing the authors of special purpose websites which contain defamatory criticism.^[8]

However, two novel issues have now arisen in relation to defamation for internet-based publications. The first is the liability of a content-provider who hosts content authored by third-party users, where it is either impossible or impractical to sue the original author of the material, and where the content host refuses to remove the material. This is the situation confronted by a person defamed by anonymous forum posts, blogs, comments, and the like. The second issue is whether search engines such as Google or Yahoo can be liable for automatically generated or aggregated content, such as search results.

Finally, there are practical issues in terms of the value or worth of any judgment obtained in Australia, if the relevant service-provider is based overseas, and particularly if it based in the USA, where free speech is protected by the constitution (see below).

PROCEEDINGS AGAINST HOSTS OF THIRD-PARTY CONTENT

Generally speaking, any party who participates in a publication is potentially liable for the defamatory publication, even if they were not the author or originator of the content.^[9] However, a defence of ‘innocent dissemination’ is recognised;^[10] this protects a party from liability if they can establish they were unaware of the defamatory nature of the publication. This defence has historically protected (for example) librarians, newsagents, booksellers and the like from liability for defamation for unknowingly being a party to defamatory publications.

As a general proposition, a host of content (such as the host of an internet forum or online bulletin board, or webpage that permits comments) will not be liable until they have been notified of the defamatory nature of material on their site, asked to remove it, and a reasonable time has elapsed.^[11]

A number of English decisions initially suggested that a host of content such as user forums or blogs will not be liable as a ‘publisher’, as they are playing a purely passive or instrumental role.^[12] However, the Court of Appeal of England and Wales more recently held that it is at least arguable, in the case of the site ‘blogger.com’ (which is hosted by Google) that, after a reasonable time elapsed following a complaint, the content host became the publisher of the content and is potentially liable for its content.^[13]

Similarly, the Hong Kong Court of Final Appeal has held that internet discussion forum hosts can be liable as publishers of the content. When considering an instance of discussion forums which allowed discussion threads, it found that the content host was the publisher of the user discussions, as the forum hosts ‘encouraged and facilitated’ the discussion threads,^[14] controlled and administered the discussion threads, and earnt income from advertising on the forums in question.

Australian single judge decisions have also accepted that content hosts may be liable for failing to remove defamatory user content after being notified of its defamatory nature, and after a reasonable time has elapsed.^[15] However, to date, the only decisions have been single judge decisions. Further development in this area can be expected in the near future.

PROCEEDINGS IN RELATION TO SEARCH ENGINE RESULTS AND OTHER AUTOMATICALLY GENERATED CONTENT

More difficult questions arise where a search engine provider such as Google has automatic processes in place which provide search results and ‘snippets’ of other webpages in search results. If search results for an individual’s name show links to webpages and snippets of webpages that are defamatory, the question arises: are the search results themselves a defamatory publication?

English decisions were, until relatively recently, weighted towards finding that purely automated search results with no human input could not be treated as a ‘publication’ capable of giving rise to an action in defamation. The reasoning has been that holding Google responsible as publisher would be akin to holding a telephone company liable for a conversation carried over its telephone lines.^[16]

However, Australian courts have, at least in single judge decisions, declined to follow these authorities and have instead held that a search engine provider such as Google can be held liable for automatically generated results.

In Trkulja v Google Inc LLC & Anor (No. 5) [2012] VSC 533, Google Inc LLC was sued by an individual when search results for his name returned results which suggested he was involved in crimes and ‘underworld’ activity. Beach J held that while the process of presenting search results was automated and there was no human intervention in the process, Google ‘intended to publish everything Google’s automated systems... produced’^[17] and was a publisher of the results in that sense.

More recently, in Duffy v Google Inc [2015] SASC 170 (a judgment handed down on 27 October 2015), Blue J considered a case where, when the plaintiff’s name, Janice Duffy, was typed into Google’s search engine, Google’s webpage gave a suggested ‘autocomplete’ result of ‘janice duffy psychic stalker’. It was held that this amounted to a publication by Google of the phrase ‘Janice duffy psychic stalker’, which was defamatory when published in response to a search based on the plaintiff’s name.^[18] In the same case, it was also held that Google was liable in defamation for search results based on the plaintiff’s name, when the search results summary of defamatory third-party websites (such as a webpage described as ‘Ripoff Reports’), after Google had failed to remove the search results.^[19] Blue J noted that although the search results were automated, after the plaintiff had complained about them: ‘their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation’.^[20]

These decisions are recent and have not yet been considered at an appellate level. In particular, the decision of Duffy v Google appears likely to be appealed, given that it represents a trial judgment (although with some issues still to be determined), and not merely an interlocutory judgment. Also, the decisions are not strictly binding on trial judges in Australia. However, for the time being, it does appear that Google (and other similar providers) can be liable in Australia for publication of defamatory search results. This begs the question, however, of the enforceability of a judgment against Google.

BUT ARE JUDGMENTS AGAINST GOOGLE ENFORCEABLE?

The starting point of any defamation action against a provider of internet-based content is ascertaining which entity is the proper defendant. It appears that, in the case of Google, the only proper defendant for search results and other similar content is likely to be the USA corporation, Google Inc LLC. In Rana v Google Australia Pty Ltd [2013] FCA 60, the plaintiff commenced a proceeding against both Google Inc and Google Australia Pty Ltd, its Australian subsidiary. The judgment noted uncontradicted affidavit evidence to the effect that the Australian company, Google Australia Pty Ltd, had no control over the content of the ‘Google’ search engines, and had no capacity to modify content, which was exclusively controlled by Google Inc.^[21] This meant that the only possible action against ‘Google’ was against the USA-based entity, and the case against Google Australia Pty Ltd was dismissed.^[22]

The USA has strong constitutional protection of free speech and freedom of the press. Since the internationally well-known decision of New York Times Co v Sullivan, [1964] USSC 40; 376 US 254 (1964), this has been applied to provide a complete constitutional defence against defamation actions unless actual malice on the part of the publisher can be established. These constitutional restrictions have, according to expert affidavit evidence referred to in recent judgments, prevented enforcement of foreign defamation judgments in the USA. In Bleyer v Google Inc LLC [2014] NSWSC 897; (2014) 311 ALR 529, affidavit evidence was also recorded of an expert in USA law to the effect that since New York Times v Sullivan (that is, since about 1964) there may not have been a single instance where a foreign defamation judgment had ever been recognised and enforced in the USA.^[23]

In light of the constitutional protections available against defamation actions in the USA, it would be unsurprising for Google to have arranged its corporate affairs so that a USA-based entity solely controls content. It would also be surprising if other international search engine providers or content hosts such as Facebook, Twitter, Yahoo, Amazon and eBay would not have adopted similar arrangements.

Although ultimately the question of whether an Australian defamation judgment could be enforced in the USA is a question of USA law, the evidence recorded in Bleyer v Google Inc LLC strongly suggests that there are significant barriers to enforcing any defamation judgment in the USA.^[24] Any practitioner considering an action against Google or another similar entity should consider this issue carefully and, if it is important to ensure that the judgment is enforceable, consider obtaining advice from an expert in USA law.

Chris Curtis is a Brisbane-based barrister who practices in commercial law. PHONE [phone] EMAIL: [e-mail].

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^[1] At [38] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

^[2] Defamation Act 2005 (NSW); Defamation Act 2005 (Vic); Defamation Act 2005 (SA); Defamation Act 2005 (WA); Defamation Act 2005 (Qld); Defamation Act 2005 (Tas); Civil Law (Wrongs) Act 2002 (ACT); Defamation Act 2006 (NT).

^[3] In Queensland, s9 of the Defamation Act 2005 (Qld).

^[4] For example, s9 of the Defamation Act 2005 (Qld).

^[5] Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652.

^[6] The abbreviated twitter summaries of the article were, however, a different matter.

^[7] Polias v Ryall & Ors [2014] NSWSC 1692; Mickle v Farley [2013] NSWDC 295; Dabrowski v Greeuw [2014] WADC 175.

^[8] See Vakras v Cripps [2015] VSCA 193.

^[9] For example, Urbanchich v Drummoyne Municipal Council (1991) ATR 81-127.

^[10] See, for example, s32 of the Defamation Act 2005 (Qld).

^[11] See Tamiz v Google Inc [2013] EWCA Civ 68; as applied in Duffy v Google Inc [2015] SASC 170.

^[12] For example, Tamiz v Google Inc [2012] EWHC QB 449, particularly at [36].

^[13] Tamiz v Google Inc [2013] EWCA Civ 68.

^[14] Oriental Press Group Ltd & Anor v Fevaworks Solutions Ltd [2013] HKCFA 47.

^[15] See Rana v Google Australia Pty Ltd [2013] FCA 60; Bleyer v Google Inc [2014] NSWSC 897 and generally the analysis in Turner, ‘Internet Defamation Law and Publication by Omission: A multijurisdictional analysis’, 34 UNSW Law Journal 37(1) at 34.

^[16] Bunt v Tilley [2006] EWHC 407; [2007] 1 WLR 1243 (at [36]).

^[17] At [16].

^[18] See at [343]-[345].

^[19] This decision was subject to resolution of further defences – see at [481].

^[20] At [206].

^[21] At [34].

^[22] At [34]-[41].

^[23] At 545.

^[24] A general search gives an indication that the constitutional protection against enforcement of foreign defamation actions has now been legislated federally in the USA in the ‘SPEECH Act’; however, the writer is not qualified to comment definitively on USA legislation.

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