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cyberlaw:intermediaries_defamation [2019/01/22 18:31]
witta
cyberlaw:intermediaries_defamation [2019/09/05 14:38] (current)
nic
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 # Intermediary Liability for Defamation # Intermediary Liability for Defamation
  
-**Chapter Overview**+## Chapter Overview 
 + 
 +This Chapter explains how defamation is an example of one area of law where intermediaries in Australia are under strong legal duties, backed by the substantial threat of financial liability, to respond to complaints about material posted by users. It commences by outlining the elements of and defences to a defamation action. The Chapter then explains intermediary liability for '​publishing'​ defamatory imputations and concludes with summaries of important case law. 
  
-Defamation is an example of one area of law where intermediaries in Australia are under strong legal duties, backed by the substantial threat of financial liability, to respond to complaints about material posted by users. 
  
 ## The Law of Defamation ## The Law of Defamation
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 ## Defences to Defamation ## Defences to Defamation
- 
  
 **Video Overview by Kylie Pappalardo: [Selected Defences to Defamation](https://​www.youtube.com/​watch?​v=YD76y1JCXnA)** **Video Overview by Kylie Pappalardo: [Selected Defences to Defamation](https://​www.youtube.com/​watch?​v=YD76y1JCXnA)**
  
-###Truth+### Truth
  
 A complete defence arises for any defamatory imputations that are true. Under the uniform defamation legislation in Australia, this defence is sometimes called "​justification"​. To satisfy this defence, the imputations must be true in substance, though some small, immaterial inaccuracies will not defeat the defence. Defendants may experience evidentiary issues in proving the truth of the allegations. The defence will fail if a reasonable person would draw untrue inferences from the statements made. Under the Australian statutes, proof that a person was convicted of an offence is conclusive evidence that they committed the offence and so it will not be defamatory to make such a statement. In Queensland, the statutory defence of justification is available under s 25 of the //​Defamation Act 2005// (Qld). A complete defence arises for any defamatory imputations that are true. Under the uniform defamation legislation in Australia, this defence is sometimes called "​justification"​. To satisfy this defence, the imputations must be true in substance, though some small, immaterial inaccuracies will not defeat the defence. Defendants may experience evidentiary issues in proving the truth of the allegations. The defence will fail if a reasonable person would draw untrue inferences from the statements made. Under the Australian statutes, proof that a person was convicted of an offence is conclusive evidence that they committed the offence and so it will not be defamatory to make such a statement. In Queensland, the statutory defence of justification is available under s 25 of the //​Defamation Act 2005// (Qld).
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 ## Case Notes ## Case Notes
  
 +### Google Inc and Duffy [2017] SASCFC 130 (4 October 2017)
  
-### Duffy v Google ​Inc [2011SADC 178+**Video Overview by Natalia Weir of [Duffy v Google](https://​www.youtube.com/​watch?​v=S6k8K28hAd8) ​[2017SASCFC 130**
  
-**Video Overview by Jack Howe: [Duffy Google](https://www.youtube.com/​watch?​v=3552Qt2JrkI)**+Duffy alleged defamation against each of Google's USA and Australian entities in respect to material appearing on websites owned by the USA (i.eparent companyGoogle entity. Searches of her name produced URL links to the websites and snippets, containing allegedly defamatory material, from those websites. Dr Janice Duffy has paid for and received psychic readings over the internet and her predictions proved to be false. Dr Duffy then engaged in an online conflict with the psychics, posting unfavourable remarks on a consumer website called Ripoff Report. Defamatory paragraphs about her were then posted, calling her a ‘psychic stalker’ and referring to her conflict with psychics on Ripoff Report. When Google’s search engine was used to search Dr Duffy’s name the autocomplete function produced an alternate search term ‘Janice Duffy Psychic Stalker’. Furthermore,​ the search engine reproduced content from, and hyperlinked to, the Ripoff Report material. The court subsequently found these allegations to be defamatory.
  
-Duffy alleged defamation against each of Google'​s USA and Australian entities in respect to material appearing on websites owned by the USA (i.e. parent company) Google entity. Searches of her name produced URL links to the websites and snippets, containing allegedly defamatory material, from those websites. ​Both the USA and Australian entities were requested by Duffy to remove the URL links and associated snippets. As neither entity acceded to the numerous requests, Duffy applied for interlocutory relief for the removal of the URL links and associated snippets.+Both the USA and Australian ​Google ​entities were requested by Duffy to remove the URL links and associated snippets. As neither entity acceded to the numerous requests, Duffy applied for interlocutory relief for the removal of the URL links and associated snippets. ​
  
-The relief sought was not granted against either of the defendants. With respect to Google Australia, this was because there was no evidence it had the ability to remove the URL links and snippets from the Google Search index. Instead, the evidence indicated that Google Inc – not Google Australia – exercised control over the Google Search (see [23]-[26]). +The relief sought was initially ​not granted against either of the defendants. With respect to Google Australia, this was because there was no evidence it had the ability to remove the URL links and snippets from the Google Search index. Instead, the evidence indicated that Google Inc – not Google Australia – exercised control over the Google Search (See video overview by Jack Howe of [Duffy v Google](https://​www.youtube.com/​watch?​v=3552Qt2JrkI) ​[2011SADC 178)
 + 
 +In 2017, the Full Court of the South Australian Supreme Court held that Google Inc was liable for publication of defamatory content through search result snippets and by hyperlinking to defamatory articles hosted on other websites. The Court found that the “search results amounted to a publication because they facilitated the reading of the defamatory material in a substantial and proximate way, which drew attention to the defamatory remarks and provided instantaneous access to them through a hyperlink.” If users were required to copy a link into their browser, it is likely Google may not have been found liable. 
 + 
 +Google sought to rely on several defences, most notably statutory qualified privilege and innocent dissemination. These were rejected by the Court of Appeal. The innocent dissemination defence was unsuccessful because Google were aware of the defamatory material. Statutory Qualified Privilege was not made out as Google was unable to prove that all persons googling Dr Duffy'​s name were concerned with her dispute with the psychics.  
 + 
 +### Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766)  
 + 
 +**Video overview by Brenton Poynting: [Voller v Nationwide News](https://​www.youtube.com/​watch?​v=zFTtINx48kI&​t=54s)** 
 + 
 +The plaintiff was Dylan Voller, a former youth detainee who was mistreated in detention. The defendants were three media companies - Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd, and Australian News Channel Pty Ltd. Mr. Voller commenced defamation proceedings against the defendants over allegedly defamatory comments written by members of the public in reply to news articles posted on their respective Facebook pages. The issues to be considered were first, whether the media defendants should be considered to be “publishers” (the first element to make out in a defamation claim) of Facebook comments made by third parties. Secondly, whether the defendants were the primary or secondary publishers of third-party comments. 
 + 
 +The Supreme Court of New South Wales ultimately held that the defendants were publishers of the third-party Facebook comments. Furthermore,​ the Court found that the defendants would be liable as primary publishers. Justice Rothman found that the compiler of a comment does not publish it as a result of her or his authorship. Rather, it is the publisher of a comment in a comprehensible or legible form that publishes the comment. The Court held that the criteria to determine whether a publisher is a “primary publisher” are that, before publication,​ the publisher knows or can easily acquire knowledge of the content of the article being published, and secondly, has editorial control involving the ability and opportunity to prevent publication of such content. The Court deemed that the defendants satisfied both elements. Consequently,​ the defence of innocent dissemination was unavailable.
  
-With respect to Google Inc, Judge Millsteed dismissed the application on the basis that the balance of convenience weighed in Google'​s favour. Without deciding the point, his Honour lent support for Google'​s argument that the automated nature of its search systems meant it was merely a facilitator and not a “publisher” of the publication of search results. ​ 
  
 ### Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345; [2012] FCA 307 ### Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345; [2012] FCA 307
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 So far as Trkulja'​s second argument was concerned, the Court held that after being given notice, Google'​s power and failure to stop publication was capable of leading to an inference that it consented to the publication (see [31]). Google was aware of the defamatory material, and could have removed from its searches the URL to the page with the defamatory photographs. So far as Trkulja'​s second argument was concerned, the Court held that after being given notice, Google'​s power and failure to stop publication was capable of leading to an inference that it consented to the publication (see [31]). Google was aware of the defamatory material, and could have removed from its searches the URL to the page with the defamatory photographs.
 +
 +### Trkulja v Google LLC [2018] HCA 25
 +
 +**Video overview by Elizabeth MacGillivray:​ [Trkulja v Google LLC](https://​www.youtube.com/​watch?​v=hCwbgqIdon0) [2018]**
 +
 +In 2012, Trkulja successfully sued Google in the Victorian Supreme Court, arguing that the publication of such web pages was defamatory. In 2015, Trkulja alleged that Google had engaged in further defamatory conduct by way of auto-complete search predictions and associative image search results. Trkulja provided evidence of his name in a search bar, with autocomplete predictive words that linked him with the underworld killings and criminals, and photos of his face in the image search tab next to other known Melbourne criminals. Upon Trkulja’s success, Google then successfully appealed the decision in 2016, with the Court of Appeal ruling that Trkulja would have ‘no real prospect of success’. However, in 2018 Trkulja subsequently appealed to the High Court of Australia, where it was held that the Court of Appeal had erred in its decision and had applied the wrong test in determining whether defamatory conduct was evident. With the High Court’s go-ahead, Trkulja’s case can therefore proceed in the Supreme Court of Victoria.
 +
 +### Defteros v Google Inc LLC [2018] VSCA 176 (25 July 2018)
 +
  
 ### Rana v Google Australia Pty Ltd [2013] FCA 60 ### Rana v Google Australia Pty Ltd [2013] FCA 60
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 **Video Overview by Claire Stewart: [Bleyer v Google Inc](https://​www.youtube.com/​watch?​v=IWlPyJGxT10)** **Video Overview by Claire Stewart: [Bleyer v Google Inc](https://​www.youtube.com/​watch?​v=IWlPyJGxT10)**
  
-__Facts__ +**Facts:** 
-  ​- ​Proceedings in the NSW Supreme Court +Proceedings in the NSW Supreme Court; 
-  ​- ​B alleged that Google published seven defamatory items about him to three people when those people performed Google searches  +B alleged that Google published seven defamatory items about him to three people when those people performed Google searches; 
-  ​- ​Material was made up of '​snippets'​ (the excerpts a user sees in a list of search results) and hyperlinks to the offending articles +Material was made up of '​snippets'​ (the excerpts a user sees in a list of search results) and hyperlinks to the offending articles; 
-  ​- ​B alleged that two of the three readers accessed the material in December 2012 +B alleged that two of the three readers accessed the material in December 2012; 
-  ​- ​In March 2013, B's solicitor asked Google to remove the items from its search +In March 2013, B's solicitor asked Google to remove the items from its search; 
-  ​- ​Google didn't do this until May 2013 and even then not everything was removed +Google didn't do this until May 2013 and even then not everything was removed; 
-  ​- ​Another person accessed the information in April +Another person accessed the information in April; and  
-  ​- ​Google applied to the NSWSC for the proceedings to be stayed or dismissed as an abuse of process+Google applied to the NSWSC for the proceedings to be stayed or dismissed as an abuse of process.
  
-__Issue__ +**Issue:** 
-  ​- ​Was google a publisher of the material for the purposes of defamation law? +Was google a publisher of the material for the purposes of defamation law? 
-  ​- ​Was there a substantial disproportion between the cost of the proceedings reaching a conclusion and the potential outcome?+Was there a substantial disproportion between the cost of the proceedings reaching a conclusion and the potential outcome?
  
-__Decision__ +**Decision:​** 
-  ​- ​The proceedings were permanently stayed. +The proceedings were permanently stayed. 
-  ​- ​Justice McCallum firstly considered whether or not Google was a publisher. Her Honour chose the follow the UK authorities c.f. Victorian authorities (see, for eg, Trkulja v Google (No 5)) given that there was no human input in the search engine apart from setting it up in the first place "at least prior to notification of a complaint ... Google Inc cannot be liable as a publisher of the results produced by its search engine"​. Her Honour did not rule on whether Google had published the material accessed in April, after Google had become aware of B's complaint. +Justice McCallum firstly considered whether or not Google was a publisher. Her Honour chose the follow the UK authorities c.f. Victorian authorities (see, for eg, Trkulja v Google (No 5)) given that there was no human input in the search engine apart from setting it up in the first place "at least prior to notification of a complaint ... Google Inc cannot be liable as a publisher of the results produced by its search engine"​. Her Honour did not rule on whether Google had published the material accessed in April, after Google had become aware of B's complaint. 
-  ​- ​Ultimately the case was decided on whether it was proportionate for the case to continue (i.e. whether it was worth continuing given the potential costs and outcome of the decision to the plaintiff): Google referred to Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA CIV 75 (a UK Court of Appeal defamation case) where an insignificant level of publication in the UK meant that there was not a "real and substantial tort". + 
-  - In the words of the Court, even if the claimant succeeded, "the game will not merely not have been worth the candle, it will not have been worth the wick". This approach had not been followed in Australian courts before but her Honour agreed that the Court is able to stay or dismiss proceedings if "the resources required to determine a claim and the interest at stake" were vastly disproportionate. Considerations beyond monetary value such as vindication of reputation are relevant. +Ultimately the case was decided on whether it was proportionate for the case to continue (i.e. whether it was worth continuing given the potential costs and outcome of the decision to the plaintiff): Google referred to Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA CIV 75 (a UK Court of Appeal defamation case) where an insignificant level of publication in the UK meant that there was not a "real and substantial tort". In the words of the Court, even if the claimant succeeded, "the game will not merely not have been worth the candle, it will not have been worth the wick". This approach had not been followed in Australian courts before but her Honour agreed that the Court is able to stay or dismiss proceedings if "the resources required to determine a claim and the interest at stake" were vastly disproportionate. Considerations beyond monetary value such as vindication of reputation are relevant. 
-  ​- ​After the decision about Google'​s status as a publisher had been made, the case rested on one potential publication to a reader in April. + 
-  ​- ​The claim would be difficult to make out and defend and any judgment would more than likely be unenforceable against Google in the US anyway. +After the decision about Google'​s status as a publisher had been made, the case rested on one potential publication to a reader in April. 
-  - As such, her Honour held that the resources of the court and parties to determine the claim would be "out of all proportion"​ to B's interest.+The claim would be difficult to make out and defend and any judgment would more than likely be unenforceable against Google in the US anyway. As such, her Honour held that the resources of the court and parties to determine the claim would be "out of all proportion"​ to B's interest.
  
 ### Crookes v Newton [2011] 3 SCR 269 ### Crookes v Newton [2011] 3 SCR 269
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 **Video Overviews on Crooks v Newton by [Clairlaw](https://​www.youtube.com/​watch?​v=ymo3-q5DD4E)** and **[Daniel Hill](https://​www.youtube.com/​watch?​v=so1Utg-W9dE)** **Video Overviews on Crooks v Newton by [Clairlaw](https://​www.youtube.com/​watch?​v=ymo3-q5DD4E)** and **[Daniel Hill](https://​www.youtube.com/​watch?​v=so1Utg-W9dE)**
  
-__Facts__ +**Facts:** 
-  ​- ​C sued N for defamation after N refused to remove a pair of links on his website. +C sued N for defamation after N refused to remove a pair of links on his website. 
-  ​- ​The links pointed to materials elsewhere on the web that C alleged were defamatory. +The links pointed to materials elsewhere on the web that C alleged were defamatory. 
-  ​- ​N did not author the materials nor locate them on C's website. +N did not author the materials nor locate them on C's website. 
-  ​- ​The only connection between the materials and N was the hyperlink on C's website.+The only connection between the materials and N was the hyperlink on C's website.
  
-__Decision__ +**Decision:​** 
-  ​- ​Appeal dismissed. +Appeal dismissed. 
-  ​- ​The online posting of a hyperlink does not constitute publication of a defamatory statement. +The online posting of a hyperlink does not constitute publication of a defamatory statement. 
-  ​- ​There is no liability for posting such hyperlinks nor any obligation to remove them. +There is no liability for posting such hyperlinks nor any obligation to remove them. 
-  ​- ​Upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.+Upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.
  
-__Reasoning__ +**Reasoning:​** 
-  ​- ​A hyperlink merely identifies the location of an article. +A hyperlink merely identifies the location of an article. 
-  ​- ​It does not incorporate the text or in any way adopt it. +It does not incorporate the text or in any way adopt it. 
-  ​- ​Links among websites create the fabric of the web and play a pivotal role in social media as users share links amongst each other. +Links among websites create the fabric of the web and play a pivotal role in social media as users share links amongst each other. 
-  ​- ​The threat of liability for the posting of a link would unnecessarily chill the further development of online media and social spaces.+The threat of liability for the posting of a link would unnecessarily chill the further development of online media and social spaces.
  
 ### Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 ### Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475
  
-__Facts__+**Facts:**
 Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 explores the liability of Internet forum operators for racial vilification pursuant to the Racial Discrimination Act 1975 (Cth) ("​RDA"​). The applicant (Dr Silberberg) was the managing director of the Housing Industry Association Ltd (HIA). HIA was a company representing the interests of people involved in the residential building industry. The Builders Collective of Australia Inc (BCA) was an incorporated association made up of predomonantly small builders and opposed policies of the HIA in many areas. The BCA operated a website. On that website there was a discussion forum which contained confidential information surrounding the building of transmitter sites for the Digital Radio Oceane project. In May 2005 and January 2006, a registered user of the forum posted messages suggesting that Dr Silberberg'​s Jewish background was responsible for a perceived unhealthy monetary focus on the part of the HIA. Dr Silberberg complained to the Human Rights and Equal Opportunity Commission, which was subsequently terminated. Dr Silberberg commenced proceedings in the Federal Court against the BCA and the forum user. Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 explores the liability of Internet forum operators for racial vilification pursuant to the Racial Discrimination Act 1975 (Cth) ("​RDA"​). The applicant (Dr Silberberg) was the managing director of the Housing Industry Association Ltd (HIA). HIA was a company representing the interests of people involved in the residential building industry. The Builders Collective of Australia Inc (BCA) was an incorporated association made up of predomonantly small builders and opposed policies of the HIA in many areas. The BCA operated a website. On that website there was a discussion forum which contained confidential information surrounding the building of transmitter sites for the Digital Radio Oceane project. In May 2005 and January 2006, a registered user of the forum posted messages suggesting that Dr Silberberg'​s Jewish background was responsible for a perceived unhealthy monetary focus on the part of the HIA. Dr Silberberg complained to the Human Rights and Equal Opportunity Commission, which was subsequently terminated. Dr Silberberg commenced proceedings in the Federal Court against the BCA and the forum user.
  
-__Decision__ +**Decision:​** 
-In sum+In sum, the forum user had unlawfully racially discriminated against Silberberg. The failure of the forum operator to remove the discriminatory postings was not proven to be racially motivated.
- +
-  - The forum user had unlawfully racially discriminated against Silberberg. +
- +
-  - The failure of the forum operator to remove the discriminatory postings was not proven to be racially motivated.+
  
 Held (per Gyles J): Held (per Gyles J):
-  - The forum postings conveyed the anti-Semitic imputations alleged by Silberberg. +The forum postings conveyed the anti-Semitic imputations alleged by Silberberg. 
-  ​- ​The forum user (the second respondent) posted the comments because of Silberberg'​s Jewish background. +The forum user (the second respondent) posted the comments because of Silberberg'​s Jewish background. 
-  ​- ​The messages were reasonably likely, in all the circumstances,​ to offend and insult Dr Silberberg or other Jews. +The messages were reasonably likely, in all the circumstances,​ to offend and insult Dr Silberberg or other Jews. 
-  ​- ​Their posting contravened s.18C of the Racial Discrimination Act 1975 (Cth). +Their posting contravened s.18C of the Racial Discrimination Act 1975 (Cth). 
-  ​- ​The BCA had knowledge of the presence of one of the offensive postings in the forum and failed to remove it. +The BCA had knowledge of the presence of one of the offensive postings in the forum and failed to remove it. 
-  ​- ​Not proven that the BCA failed to remove it because of the Jewish race or ethnicity of Dr Silberberg, as required by the RDA. +Not proven that the BCA failed to remove it because of the Jewish race or ethnicity of Dr Silberberg, as required by the RDA. 
-  ​- ​The case against the BCA was dismissed.+The case against the BCA was dismissed.
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