The rapid rate at which the digital age continues to grow, especially in respect to the use of social media and online publication, has meant traditional defamation laws don’t always best reflect modern times.
Every social media user is considered a publisher in the eyes of the law, and by extension this can include page owners as well as moderators of social media groups. Publishing defamatory material on social media has the potential to be widely shared rapidly, causing further significant harm to the defamed person’s reputation and increasing legal liability for those involved in publishing & sharing the defamatory publication.
Many recent High Court decisions have attempted to define responsibility for published defamatory content online.
Google LLC v Defteros
In February 2022, Google warned of a “devastating” impact on the internet if a court ruling that the search giant is liable for defamatory material contained in hyperlinked pages is not overturned.
Google warned in its submission to the high court it will be forced to “censor” its search results if a $40,000 defamation damages award to George Defteros, a solicitor who represented Melbourne gangland figures, is allowed to stand.
Defteros successfully sued Google, arguing its publication of search results that included a 2004 article in the Age about his arrest on conspiracy to murder charges – which were later dropped – defamed him.
Google warned if the court of appeal judgment stands “Google will be liable as the publisher of any matter published on the web to which its search results provide a hyperlink” after a person complains the matter defamed them – “regardless of the quality” of that notice.
You can read that article here.
Google later appealed to the High Court against its defamation liability finding by the Court of Appeal of the Supreme Court of Victoria. The High Court ruled in Google’s favour finding that it was not liable for defamation as it was not a “publisher” of defamatory material in the article published by The Age, by providing hyperlinks with no defamatory ‘snippets’ in its organic search results.
Changes to the Defamation Act
On 30 October 2023, a NSW bill to amend the Defamation Act 2005 (DA Act) received assent which seeks to provide clarity on exemptions and defences from liability for defamatory content posted online for digital intermediaries.
You can access a copy of the bill here.
At this stage, the amendments are due to commence on July 1st 2024.
The bill introduces several new terms into the DA Act, including:
- digital intermediary,
- search engine,
- search engine provider,
- caching service,
- conduit service, and
- storage service
A digital intermediary is a person or entity who provides or administers the online platform on which defamatory material is published, but who is not the original author or poster of that material. Digital intermediaries include internet service providers, content hosts, search engines, review websites and social media platforms. Organisations and individuals who use online platforms to host forums that invite third-party comments, known as ‘forum administrators,’ are also digital intermediaries.
The key Part A reforms include:
- two conditional statutory exemptions from defamation liability for a narrow group of digital intermediaries, including search engines in relation to organic search results (non-sponsored search results)
- a new innocent dissemination defence for digital intermediaries, subject to a simple complaints process
- empowering courts to order digital intermediaries to prevent access to defamatory content online, even when they are not parties to defamation proceedings
- requiring courts to consider safety, privacy and the public interest when making orders against digital intermediaries to provide the identity or contact details of a poster of online content
Source: Communities & Justice NSW Govt 2023
You can access the media release on the proposed changes here.
Fairfax Media Publications Pty Ltd v Voller
The reforms were greatly influenced by the decision of the High Court in Fairfax Media Publications Pty Ltd v Voller (2021).
The original ruling found media companies were “publishers” of third-party posts on their Facebook pages, making them liable for their audience’s defamatory statements after former Don Dale detainee Dylan Voller had sued the publishers of The Sydney Morning Herald, The Australian and Sky News Australia over 10 comments posted by others to the media companies’ Facebook pages in 2016 & 2017.
The news outlets had argued that to be publishers, they must have been instrumental to, or a participant in, the communication, not simply involved in “innocent dissemination” as administrators of a public Facebook page where third parties could post material.
The High Court did not agree.
At Litton Legal, we’re experts in Defamation Law. If you need assistance with any defamatory matters, contact our office here.