Defamation reform

Aug 26, 2022
Phone showing social media icons and google
Image: iStock

A meeting of Attorneys-General was convened on 12 August in Melbourne and chaired by Commonwealth Attorney-General Mark Dreyfus QC.

One matter considered was the Review of the Model Defamation Provisions; and within that review is the topic of the impact of technology on traditional defamation concepts, in particular, publication. What should be the extent of liability of internet service providers for publication of defamatory statements by third parties?

The issue was brought to the fore in 2021 by the High Court’s decision in Fairfax Media Publications P.L. & Ors v Voller [2021] HC 27. In that case the High Court held that liability for publication in defamation is strict, such that voluntary participation in the dissemination of the defamatory matter sufficed. Fairfax was liable for comments posted on its public Facebook page even before Fairfax had been notified by a complainant of the defamatory nature of the comment. The High Court held that Fairfax was a publisher of the third-party comment because it had facilitated, encouraged and thereby assisted in the communication of the comments.

With the proliferation of communication by increasingly diverse means, viz. Facebook, Instagram, Twitter, etc., it is not difficult to see the interest in the issue, particularly on the part of business enterprises involved.

Not surprisingly Google has conducted a campaign via defence of numerous cases in Australia, seeking to protect its business model which avoids the necessity to check material returned by its search engine. Issues of the right to a reputation and privacy are sought to be set against freedom of speech, and, for those perhaps more cynical, the right to unrestricted capitalism and the making of huge profits, principally from advertising associated with such internet search engines and service providers, as Google, Yahoo!, Bing and others emanating from Silicon Valley.

Up to last week Google has been largely unsuccessful, certainly in Australia. On Wednesday 17 August, however, the High Court, by majority of 5 to 2 upheld an appeal by Google in the case of Google LLC v Defteros [2022] HCA 27. For those concerned with the preservation of the right to protect a reputation, this decision will no doubt make more urgent the need for clarity to be established by Parliament through the Model Defamation Provisions review.

What the High Court held in Defteros was that when providing a Search Result by the provision of a hyperlink with accompanying text that is not itself defamatory, Google was not publisher of defamatory material within the hyperlink itself.

One unsatisfactory aspect of the High Court’s judgment is the failure of the High Court to adequately answer the findings of the lower courts that Google did so publish it if it did not remove the offending material from its digital source a reasonable time, viz., one week, after Google had been notified of the fact of the offending material.

The resulting position is quite unacceptable. The indulging by the High Court in semantics associated with the description of the multitude of ways in which material is published or presented on the net creates a lawyers’ feast. Given the cost of litigation today, and the capacity of an entity such as Google to ‘deep pocket’ a prospective litigant against it, no-one in their right mind is likely, in the future, to risk taking action to defend his/her reputation.

There is therefore a strong case for an intervention by Parliament to make rules for the giving of notice in a formal way, and for a formal response by the ‘publisher’ and for there to be clear imposition of liability for continued publication of offending material thereafter.

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