- Chapter Overview
- The Law of Defamation
- Defences to Defamation
- Intermediary Liability for ‘Publishing’ Defamatory Imputations
- Case Notes
- Google Inc and Duffy  SASCFC 130 (4 October 2017)
- Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766)
- Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345;  FCA 307
- Trkulja v Google Inc. & Google Australia Pty Ltd (No 5)  VSC 533
- Trkulja v Google LLC  HCA 25
- Defteros v Google Inc LLC  VSCA 176 (25 July 2018)
- Rana v Google Australia Pty Ltd  FCA 60
- Visscher v Maritime Union of Australia (No 6)  NSWSC 350
- Trkulja v Yahoo! Inc LLC  VSC 88
- Bleyer v Google Inc LLC (2014) 311 ALR 529
- Crookes v Newton  3 SCR 269
- Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475
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.
Video Overview by Kylie Pappalardo: A Brief Introduction to Defamation Law
Defamation law is concerned with harm to a person’s reputation (to “de-fame” someone). The law is therefore concerned with balancing the protection of reputation and freedom of expression. Defamation is the umbrella term for what used to be called libel (written imputations) and slander (verbal imputations).
Defamation law is regulated by the states. Uniform legislation has now been enacted across Australian states and territories to ensure consistency across Australian jurisdictions. This legislation came into effect from 1 January 2006.
There are three elements of a defamation action: (1) defamatory matter (2) that is referable to the plaintiff and (3) which is published.
Defamatory matter will usually consist of a newspaper article, a letter, a blog post, a news story etc. Within the matter in question, there may be several defamatory imputations. It is necessary to read or listen to the matter carefully in order to identify the possible defamatory imputations.
Imputations may take several forms. They may arise from the natural and ordinary meaning of what is said (e.g. “Susan is a thief”), or they may be implied. Implied imputations are called “innuendo”. False innuendo are those imputations that arise from the subtext of what is said. True innuendo arises where there is a secondary meaning to what is said that is apparent when the matter is combined with the recipient’s prior knowledge or with other external information.
Once the imputations are identified, it is necessary to decide whether they are defamatory. The test for defamation is that the imputation is likely to lower the plaintiff’s standing or estimation in the community or lead an ordinary reasonable person to think less of the plaintiff.1
Courts will apply the test with reference to the “hypothetical referee” - an ordinary, reasonable member of the community. The hypothetical referee is someone of reasonable intelligence who will take into account the context of the defamatory statement. Courts will apply the community standards that currently prevail, with the understanding that community standards change over time. Courts will also consider the ordinary attention span of the public in reference to the form in which the defamatory imputations appeared. This means that for content that the public will normally view or hear quickly (such as scanning newspaper headlines), it is more likely that any imputations will be defamatory.
Motive is irrelevant to proving that material is defamatory - it does not matter that the defendant did not intend to defame the plaintiff. It is, however, relevant to multiple defences such as ‘honest opinion’ and ‘qualified privilege’.
The defamatory imputations must refer to the plaintiff. This makes sense, because the gist of defamation is that the imputations must damage the plaintiff’s reputation. The plaintiff does not need to be named, but must be identifiable. A reasonable person, having knowledge of the relevant circumstances, must understand that the material refers to the plaintiff.
There are limits to who can sue in defamation. Persons can be defamed, but dead persons cannot. (However, statements made about a dead person may be actionable if the defamatory imputations are referable to a family member). Companies cannot be defamed, unless that have less than 10 employees or they are not-for-profit. Groups cannot be defamed, unless the matter can be read as referring to a specific individual in the group or to each member of the group individually. Thus, statements made in reference to a group will normally only be actionable, as a practical matter, if the group is very small or if there is a clear public representative or leader of the group to whom the imputations refer.
Defamatory matter must be published. “Published” here means “made public” or communicated to another person. The matter need only be communicated to one other person to be actionable, but the more people the matter is published to the greater likely impact there will be on the plaintiff’s reputation.
In defamation law, every republication or repetition is treated as a fresh publication. It may also be a publication to omit to remove or amend defamatory matter that is under the plaintiff’s control. 2
For publication on the internet, uniform defamation legislation now provides that the applicable law is that from the jurisdiction in which the harm occasioned by the publication as a whole has the closest connection. Usually, the jurisdiction with the closest connection to the harm will be that in which the plaintiff lives or runs their business, because that will be the jurisdiction in which their reputation is the strongest and therefore most severely damaged by the defamatory imputations. See further, cyberlaw:jurisdiction.
Video Overview by Kylie Pappalardo: Selected Defences to Defamation
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).
There is also a related defence of contextual truth. This defence applies where: (1) matter carries one or more defamatory imputations that are substantially true; and (2) the matter also contains an imputation that cannot be proved but which does not further harm the plaintiff’s reputation. In these circumstances, the defence of contextual truth will excuse the unproven imputation. In other words, the force of the true imputations is strong enough that the untrue imputation does not really do any further harm.
Contextual truth is a statutory defence under s 26 of the //Defamation Act 2005// (Qld). There is a similar defence at common law called the Polly Peck defence. This defence operates where different imputations have a common sting. If some imputations can be proven to establish the truth of the common sting, then it will not matter that the other imputations cannot be proven. For example, if a publication alleges that John stole from Sarah, Ashley and Peter, the common sting is that John is a thief. If the allegations in relation to Sarah and Ashley can be proven, then this will be sufficient to establish the common sting and the imputations in relation to John stealing from Peter will be excused even though they cannot be proven.
The defence of honest opinion excuses any defamatory statements made that are clearly only the defendant’s personal opinion (i.e. not presented as fact) and which relate to something in the public sphere. This defence operates to protect reviews of movies (and actors), music, and restaurants, for example. The opinion must be honestly held, and the defence is defeated if the plaintiff can show that the defendant did not honestly hold the opinion. In Queensland, the defence is available under s 31 of the //Defamation Act 2005// (Qld).
The defence of innocent dissemination protects subordinate distributors (such as vendors, postal workers, librarians, or live broadcasters who do not have control over the performers making the defamatory statements) who publish defamatory material when they neither knew nor reasonably could have known that the matter was defamatory. This defence protects those actors that are several steps removed from the making of the defamatory statements. Lack of knowledge is the crux of this defence.
Under the defence of innocent dissemination (provided in Qld by s 32 of the //Defamation Act 2005// (Qld)), liability accrues from the point at which the intermediary acquires knowledge of defamatory material.3
Video Overview by Nic Suzor: Intermediary Liability for Defamation
The general rule for defamation is that anyone in the chain of publication can be liable and held responsible for defamatory imputations that are published. This is very broad - it means, for example, that the operators of websites and discussion forums are potentially liable when unrelated third-parties post comments that are defamatory. In some circumstances, it may also extend to intermediaries who only have a tangential role in making the content available - including, for example, search engines who make the content discoverable or, through technical processes, reproduce third-party content on their own services in a way that is defamatory.
The main limit to intermediary liability in defamation is the innocent dissemination defence, which applies when an intermediary does not and should not reasonably have known that the material published was defamatory. This means that intermediaries will be liable under Australian law either when they have some role in selecting or editing the content to be published, or where they do not take an active role but are put on notice that content accessible through their systems is likely to be defamatory. In practice, this means that Australian intermediaries have a strong obligation to remove content that is potentially defamatory once they are made aware of it. This is substantially different to the position in other jurisdictions - for example, in the United States, an intermediary is generally not taken to be a publisher of material posted by a third-person.4
In defamation, the word ‘publish’ extends liability to intermediaries who fail to remove defamatory material posted by others when they have some ability to do so.2 Courts have been able to relatively simply draw an analogy between newspaper publishers5 or broadcasters6 who carried content created by others to situations in which the operators of websites and discussion fora provided the facilities for others to post comments.7 While this was an ostensibly technologically neutral shift, the role of publishers in exercising editorial control has changed significantly. The test for liability by omission has evolved so that a secondary actor ‘publishes’ defamatory material if they have “consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement … in other words … [if there is] an acceptance by the defendant of a responsibility for the continued publication of that statement.”8
In Trkulja, Google was found liable for defamatory imputations carried as a result of the automated organisation and display of search results.9 In at least two instances, people have been found liable for publishing links to defamatory content posted by third parties. In one instance, the defamatory imputation was found to have been endorsed by the defendant when it used the words “read more” to imply that the linked content was a true account.10 In the other, Yahoo!7 conceded that because at least one person had read an article, hosted on a third party website, by following a link presented through the Yahoo!7 search engine, Yahoo had ‘published’ that article.11 These decisions stand out in contrast to emerging authority in the UK12 and Canada13
, which increasingly suggests that more needs to be done to ‘publish’ a defamatory imputation. In the spate of recent interlocutory decisions regarding search engines that followed Trkulja, some Australian courts have doubted whether search engines can be liable merely for linking to defamatory material on third party sites, but the law is not yet settled.14
Like defamation, intermediaries who provides a forum for third-party content can be liable under the Racial Discrimination Act 1975 (Cth) (‘RDA’) when those comments amount to vilification. Section 18C makes it unlawful to “do an act”15 that is reasonably likely to “offend, insult, humiliate or intimidate” a person or group where that act is done motivated by “race, colour or national or ethnic origin”. In the two decisions that have considered the provision in the context of an online forum, courts have come to somewhat conflicting conclusions as to when a secondary actor will be liable for providing the facilities for another to make vilifying comments. The uncertainty lies primarily in the intentional element of the provision. As in defamation, courts agree that providing the facilities to enable others to post comments and failing to remove them is sufficient to constitute an “act” of publication of the substance of those comments, at least once the operator has knowledge of the comments.16 The conflict is whether failure to remove comments is done “because of the race, colour or national or ethnic origin” of the person or group. In Silberberg, Gyles J found that there was insufficient evidence to draw that conclusion; the respondent’s failure to remove the offensive comments was “just as easily explained by inattention or lack of diligence.”17 In Clarke v Nationwide News, by
contrast, Barker J held that where the respondent “actively solicits and moderates contributions from readers”, the “offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it.”18 The Court was able to infer that one of the reasons for publishing comments that were objectively offensive because of race was also because of race.19 Apart from emphasis placed on the act of moderation in Clarke, there is no easy way to reconcile these two authorities.
Video Overview by Natalia Weir of Duffy v Google  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. 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.
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  SADC 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  NSWSC 766)
Video overview by Brenton Poynting: Voller v Nationwide News
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.
Video Overview by Steven McMahon on Clarke v Nationwide News
A single justice sitting as the Federal Court was asked to decide whether the newspaper company contravened s 18C of the Racial Discrimination Act 1975 (Cth) when a reader published racially-fuelled comments on an article published about the death of several Aboriginal boys. The comments were moderated by the newspaper prior to publication. This was an application for damages, which were awarded in the sum of $12,000.
The court rejected the newspaper’s argument that it merely moderated the comments and wasn’t in contravention of the Act:
… where the evidence is that a respondent actively solicits and moderates contributions from readers before publishing them, and reserves the right not to publish or modify them, the potential for a finding of contravention of s 18C is real. If the respondent publishes a comment which itself offends s 18C, where the respondent has “moderated” the comment through a vetting process, for example, in order not to offend the general law, then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it. In such circumstances, it will be no defence for the respondent media outlet to say, “But we only published what the reader sent us”. (see para )
The control over publication on the website, coupled with the knowledge of the publication’s contents, therefore sufficed for the newspaper to be considered responsible over the publication. Barker J distinguished this case from cases where no such moderating was undertaken, and cases where the existence of the comment was unknown by the media company. Implicit in his Honour’s reasons is this: since the newspaper did not exercise its right to refuse to publish or modify the comments, that meant it approved of them.
Video Overview by Patrick Johnson: Trkulja v Google
The plaintiff successfully obtained a verdict of defamation against Google Inc. in a trial by jury in respect of photos posted on the internet. The plaintiff claimed that a Google search of his name showed results that displayed his picture and name together with pictures of other individuals either known to have committed serious criminal offences or against whom serious criminal allegations had been made and an article with the heading //Melbourne Crime//.
The photos appeared in an online news article about a Melbourne shooting. The plaintiff successfully convinced the jury that the photos imputed that he was a prominent figure in the Melbourne criminal underworld, and Google Inc. (but not Google Australia) was ordered to pay damages.
Google Inc. then applied to have the verdict set aside on the basis that there was no evidence upon which a reasonable jury could return a verdict for the plaintiff. Google argued this was because, amongst other things, it was not a “publisher” of the images; rather, even with notice of the material, it was merely a passive platform provider not capable.
The plaintiff argued that Google Inc. was a “publisher” of the images, on two bases: first, Google’s automated systems were programmed by humans to do exactly as intended and publish the material; and second, Google’s failure to take steps to remove the relevant URL for the page on which the defamatory material appeared after the plaintiff’s several requests it do so.
The court declined to overturn the jury’s verdict, accepting the arguments put forth by Trkulja.20
In respect of Trkulja’s first argument, the Court focused its reasoning heavily on Google’s intention as manifested in the operation of its automated system, comparing Google to a newsagent selling a newspaper containing a defamatory article. While not specifically intending to publish defamatory material, it intended, the Court held, to publish the material it produced (see ). Google Inc. could not here say that its conduct was merely passive. Beach J distinguished Tamiz v Google Inc  EWHC 449 and even doubted whether Google could be described as an “internet intermediary” in this context since the material was produced as a result of the operation of its search engine (see ). Interestingly, Tamiz was the case which was held to be persuasive by the court in Duffy, so there is an inconsistency of judicial opinions here.
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 ). Google was aware of the defamatory material, and could have removed from its searches the URL to the page with the defamatory photographs.
Video overview by Elizabeth MacGillivray: Trkulja v Google LLC 
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.
Video Overview by Carlie McCulloch: Rana v Google
Rana sought leave to serve proceedings on Google Inc (USA-based), claiming Google was liable as publisher of a third party’s defamatory websites as appearing in Google’s search results; significant reliance was placed on the Trkulja case. Google sought summary judgment dismissing the claim, on the basis of no reasonable prospect of establishing Google was the publisher of the websites.
Justice Mansfield granted leave to serve the proceedings (see ). His Honour found it inappropriate to refuse leave on the basis that Google Inc. was not the “publisher” of the defamatory material, given the inconsistency between Duffy and Trkulja.
Video Overview by Matthew Dolan: Visscher v MUA
This was a (non-jury) defamation trial before the New South Wales Supreme Court. The court held that an online article’s hyperlink to another, defamatory, article amounted to a “publication” according to the Urbanchich test.
A critical factor was that the hyperlink was prefaced by words inviting the reader to read the “full story” which, in the Court’s view, made clear that the hyperlinked material was being endorsed/adopted/promoted by the defendant. Thus, while Beech-Jones J seemed to accept that posting of a hyperlink on its own may not amount to publication of the linked material (see ), his Honour considered that context was important:
By publishing the MUA article with its hyperlink to the Cootamundra Herald article, the MUA clearly accepted responsibility for the continued publication of the Cootamundra Herald article. Its actions amounted to, at the very least, an adoption or promotion of the content of the Cootamundra Herald article. The MUA article introduced the reader to the danger faced by the MUA crew. It provided details about their plight and then invited a viewing of the “full story” by having the reader click on a hyperlink. In context, it conveyed that the details published in the MUA article were part of a more complete version (the “full story”) which was to be found by clicking the hyperlink. (See )
The Court here rejected the approach adopted by the majority in the Supreme Court of Canada case of Crookes v Newton  3 SCR 269. In Crookes, it was held that the online posting of a hyperlink does not constitute publication of a defamatory statement, as an online link will only be defamatory if it actually repeats defamatory material. The reasoning here is that a hyperlink merely identifies the location of an article, but 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 rapidly share links amongst each other. The threat of liability for the mere posting of a link would unnecessarily chill the further development of online media and social spaces.
Beech-Jones J distinguished Crookes on three grounds. First, that the Supreme Court of Canada’s reasoning was informed by the Canadian Charter of Rights and Freedoms – of which there is no equivalent in New South Wales. Secondly, that it was difficult to accept that the hyperlink would need to repeat the defamatory material to amount to “publication”. Such an approach, in his Honour’s view, takes context out of the analysis and forecloses the ability for the law to conform to changing internet norms in the future. Thirdly, that the Court’s reasoning was inconsistent with the principle in Urbanchich – namely, that defamation can be imputed against a defendant who approved, adopted, promoted or in some way ratified the content.
Video Overview by Stuart Efstathis: Trkulja v Yahoo
In Trkulja v Yahoo! LLC, T sued Yahoo for publishing a story on an attempted hit on T’s life through the Yahoo!7 search service on a website entitled “Melbourne Crime”. Next to a large photo of T appeared the text of the article:
“Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt. Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004.The would-be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.
A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence. But Mr Trkulja, 58, now claims to know the identity of the hit man and those who hired him. He says he has passed the names to the police. ‘He (the hit man) was offered $10,000 to kill me, I know who sent him and they know that I know who they are,’ Mr Trkulja told the Herald Sun.
`Nobody should be shot like this.’ Mr Trkulja’s lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered.”
T was a well-known music promoter who regularly appeared in the media. T alleged that the article was defamatory due to the imputations:
- That the plaintiff was a criminal;
- The plaintiff was so involved in crime that his rivals had put a hit on him; and
- That the plaintiff was such a significant figure in Melbourne crime that the events involving him were recorded on a website that commonly reported on matters of Melbourne crime.
Yahoo ultimately admitted publication, but submitted that the article did not convey the imputations and denied that the plaintiff had been defamed. Question of whether the indexation of the article on the Yahoo search engine constituted publication was not determined.
HELD, the article carried imputations 2 and 3 and those were defamatory of the plaintiff. The article reached a widespread audience and thus the damage to the plaintiff’s reputation was similarly widespread. The fact that the material remained available through the Yahoo! search engine, without being removed, served to increase the damage to the plaintiff’s reputation throughout the community. Aggravated damages was not awarded, but T still received $225,000.
Video Overview by Claire Stewart: Bleyer v Google Inc
Facts: 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; 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; 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; 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.
Issue: 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?
Decision: 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.
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  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. 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.
Facts: 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. 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.
Decision: Appeal dismissed. 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. Upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.
Reasoning: A hyperlink merely identifies the location of an article. 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. The threat of liability for the posting of a link would unnecessarily chill the further development of online media and social spaces.
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.
Decision: 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.
Held (per Gyles J): 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 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). 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. The case against the BCA was dismissed.
Radio 2UE Sydney v Chesteron  HCA 16 ↩
see David Rolph, ‘Publication, Innocent Dissemination and the Internet after Dow Jones & Co Inc v Gutnick’ (2010) 33 University of New South Wales Law Journal 562, 573–75. ↩
See Section 230 Communications Decency Act. ↩
see, e.g. Wheeler v Federal Capital Press of Australia Ltd (1984) Aust Torts Reports ¶80-640 ↩
see, e.g. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 589–90, 596. ↩
No Australian courts have specifically considered this point, but see Oriental Press Group Ltd v Fevaworks Solutions Ltd  HKCFA 47. ↩
Urbanchich v Drummoyne Municipal Council  Unreported Judgments NSW, Hunt J 7. ↩
Trkulja v Google Inc, Google Australia Pty Ltd VSC 533; Trkulja v Yahoo! Inc LLC  VSC 88 ↩
Trkulja v Yahoo! Inc LLC  VSC 88, – (Kaye J). ↩
In the UK, Justice Eady of the High Court of England and Wales found that Google was not liable for information contained in search engine results (//Metropolitan Schools Ltd v Designtechnica Corpn//  1 WLR 1743) or the content of blogs it hosts on Blogger.com (//Tamiz v Google Inc//  EWHC 449). ↩
The reference to “an act”, in this case, specifically includes an omission: see RDA s 3(3): “refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.” ↩
Silberberg v Builders Collective of Australia Inc 164 FCR 475, 485; Clarke v Nationwide News Pty Ltd (2012) 289 ALR 345, 367, . ↩
Silberberg v Builders Collective of Australia Inc* 164 FCR 475, 486. ↩
Clarke v Nationwide News Pty Ltd* (2012) 289 ALR 345, 367, . ↩
//Trkulja v Google Inc. & Google Australia Pty Ltd// (No 5) [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2012/533.html?stem=0&synonyms=0&query=title(Trkulja%20and%20Google%20Inc.%20)&nocontext=1]( VSC 533 ↩