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cyberlaw:intermediaries_defamation [2019/01/24 17:33]
witta
cyberlaw:intermediaries_defamation [2019/09/05 14:38] (current)
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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. 
  
-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 starts by  
  
 ## 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
  
-### Duffy v Google Inc [2011SADC 178+### Google Inc and Duffy [2017SASCFC 130 (4 October 2017)
  
-**Video Overview by Jack Howe: [Duffy v Google](https://​www.youtube.com/​watch?​v=3552Qt2JrkI)**+**Video Overview by Natalia Weir of [Duffy v Google](https://​www.youtube.com/​watch?​v=S6k8K28hAd8[2017] SASCFC 130**
  
-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 snippetsAs neither entity acceded ​to the numerous requests, ​Duffy applied for interlocutory relief for the removal of the URL links and associated snippets.+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. ​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 ReportWhen 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.
  
-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]). +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 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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