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cyberlaw:intermediaries_defamation [2019/09/05 14:24]
nic
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 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. 
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 ## The Law of Defamation ## The Law of Defamation
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 **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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 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. 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.
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 +### Defteros v Google Inc LLC [2018] VSCA 176 (25 July 2018)
  
  
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