This post was contributed by Elizabeth Englezos, a PhD candidate and sessional academic at the Griffith Law School and a member of the Law Futures Centre. A full copy of this article with associated references can be found at: https://t.co/aGySqMaHN0.
The advent of the Internet has resulted in a “disaggregation” of the process of publication and has facilitated a shift from “one-to-many” publication to “many-to-many” publication. That technological and sociological development has not been shown to warrant a relaxation of the strictness of the common law rule [of publication].
Internet technologies have become an integral part of the fabric of society. Australia’s most popular platform is Facebook with 18 million users per month, followed closely by YouTube at 17.5 million. When it comes to search engines, Australians are 20 times more likely to use Google than its closest competitor Bing (with 93.37% and 4.63% of the Australian market, respectively). The statistics are not surprising. The power and influence of internet technologies such as Facebook and Google are indisputable. Facebook has become more than just a way to keep in contact with friends: it has become a public meeting place, a community notice board, and provides a forum for public discussion and encourages debate on news and other related matters, and a thriving marketplace being an important component of any modern business plan. Likewise, Google determines which sites we visit or via its platform YouTube, recommends which videos we watch. Search engine optimisation (SEO), which improves page ranking on search engines such as Google, is a similarly essential part of business and marketing. However, two recent Australian decisions have confirmed that the owners of Google (and possibly Facebook) could be held liable for defamation as publishers of third-party posts merely by making that information available to others.
In the first case, Fairfax Media Publications Pty Ltd v Dylan Voller (‘Voller’), the High Court of Australia was asked to determine if the owner of a Facebook page could be held liable as a publisher of third-party comments posted to that page. The second case, Barilaro v Google LLC (‘Barilaro’) considered whether an online platform becomes a publisher of defamatory content following their failure to remove that content. Read together the cases suggest:
- That a party responsible for administering a website will be a publisher of that content where it ‘makes [defamatory content] available for comprehension by a third party’ and
- Where a platform becomes aware of defamatory content and fails to act to remove said content, the platform will be taken to have published that content and will be liable for damages.
While both decisions drew significant media attention, the Voller decision left many lamenting the death of free communication on social media. Parliament House sought immediate reform with the Social Media (Anti-trolling) Bill 2022 (Cth). The Bill was read for the first time on 10 February 2022. The Hon. Paul Bradfield described the Bill as an urgent response ‘to the risks created by the Voller decision [and intended] to protect all Australians who maintain a normal social media page from inappropriate defamation liability.’ While both decisions determined very narrow questions of defamation law, both provided a modern restatement of the law related to digital content and internet technologies.
Voller and the strict liability for publishers of defamatory content
Dylan Voller featured in a 2016 episode of ABC’s Four Corners titled ‘Australia’s Shame’. The episode concerned allegations of mistreatment in the Northern Territory’s Juvenile Detention System. During the episode, footage was shown of Mr Voller strapped to a restraining chair and wearing a ‘spit-hood’. The public response was immediate. Following the broadcast, the Prime Minister established a Royal Commission into the Northern Territory Juvenile Justice System, with Mr Voller drawing increasing public attention. As a result, Mr Voller became a well-known and polarising public figure.
Fairfax Media Publications (‘Fairfax’), Australian News Channel (‘ANC’) and Nationwide News (‘NN’) each published stories featuring Mr Voller, linking each story to their respective Facebook pages. It was common ground that none of the stories contained defamatory imputations. At the time, Facebook did not allow for the disabling of third-party comments. Even those comments which were automatically ‘hidden’ remained visible to ‘friends’ of the third party. Voller claimed that a number of the third party Facebook comments published on Fairfax’, ANC’s and NN’s were defamatory and commenced proceedings in the Supreme Court of New South Wales. After accepting that the comments were defamatory per se, the only question was whether Mr Voller had sufficiently established publication by Fairfax, ANC or NN. The primary judge answered the question in the affirmative and Fairfax ANC and NN were found to have defamed Mr Voller. Each of the appeals were dismissed. Fairfax, ANC and NN (‘the appellants’) were granted leave to appeal the matter before the High Court.
Did the appellants publish the impugned content?
Before proceeding further, it is important to note that Voller only addressed the issue of publication. The appellants contended that publication requires an intention to publish defamatory matter and therefore requires more than a passive contribution to publication. Publication is an essential requirement in any claim for defamation. Consequently, the lack of intention to publish would negate the element of publication so that no publication occurred. The appellants argued that no claim for defamation could succeed without establishing the element of publication.
The High Court unanimously disagreed with this contention confirming the strict liability for publishers and stating that actions for defamation do not require proof of fault. As such, the intention of party publishing the defamatory matter is irrelevant because the actionable wrong occurs on the publication of the defamatory content.
Publication is strictly defined and the law of publication ‘tolerably clear.’ The act of ‘clamping down’ the printing presses (as an employee) with the intention to facilitate publication – even in the absence of any knowledge of what is published– will constitute publication. The full Court (including Edelman and Steward JJ dissenting) held that publication cannot be rebutted. The Court stated that ‘the communication may be quite unintentional, and the publisher may be unaware of the defamatory matter’, but ‘the person communicating the defamatory matter will nonetheless be liable.’
The strict approach to publication and the vast breadth of its application led to the development of a defence for innocent dissemination for mere distributors or disseminators of defamatory matter.Thus, the defence of innocent dissemination allows that a party that publishes the defamatory matter may not be liable despite their involvement. The defence applies ‘where a subsidiary publisher can show that they did not know, and by the exercise of reasonable care in all the circumstances could not have known, that the thing disseminated by them contained defamatory material.’ This defence has been formalised in s 29A of the Defamation Act 2007 (NSW). Additional defences such as where the published matter concerns issues of public interest, or the honest opinion may also apply. However, it appears unclear whether these defences will succeed where the defendant does not author the comments.
Another controversial aspect of Voller was the lack of notice of claim given to any of the appellants. This matter has been addressed by the passing of the Defamation Amendment Act 2020 (NSW) (the Act). The Act created a threshold element of serious harm for all future claims of defamation and the requirement for the issue of a written concerns notice to the publisher. Consequently an action for defamation cannot proceed unless and until a concerns notice has been served and the period for response has elapsed.
Much of the confusion related to Voller appears linked to the meaning of ‘publisher’ and the conflation of a finding of publication with a finding of liability for defamation. Professor David Rolfe describes Voller as illustrating the disadvantages of a procedural approach that determines a single question, noting that such an approach can have unintended consequences. Nonetheless, Voller establishes that the owners or administrators of pages or online blogs can be held liable as publishers of third party comments where no defence is made out. Barilaro qualifies the Federal Court’s position on publisher’s liability where a digital platform fails to act or take down defamatory matter. The matter was decided before a single judge of the Federal Court of Australia on the 6th of June 2022. It remains unclear whether there will be any further litigation in the matter or whether any of the precedents established in Barilaro will be upheld, overturned or further qualified.
Barilaro and the failure to respond or ‘take-down’ content in breach of community guidelines.
Barilaro concerned what could be described as a highly personal and vitriolic social media campaign that targeted (then) Deputy Premier of New South Wales, Mr John Barilaro. During the course of his public office, Mr Barilaro drew the ire of content creator Jordan Shanks-Markovina of the ‘friendlyjordies’ in a sustained campaign which Justice Rares described as ‘hate filled’, ‘vitriolic’ and ‘constant public cyberbullying’. Mr Barilaro took legal action against both Mr Shanks and Google (after being directed to Google LLC from the offices of Google Australia). While Mr Barilaro and Mr Shanks eventually negotiated an out of court settlement, Mr Barilaro alleged that Google’s failure to act or take down the offending content appeared to endorse the comments made by Mr Shanks. The Court agreed, stating that:
‘Google’s conduct after the 22 December 2020 in leaving both Mr Shanks’ existing and subsequently posted videos online magnified the hurt… inflamed hate filled responses directed at [Mr Barilaro] ... and allowed a perception, until the trial that Google actually had a bona fide defence proceeding for its conduct.’
In their defence, Google argued that the Court must ‘distinguish Google’s position from that of Mr Shanks because it was “not the creator of the content”’. However the Court held that ‘every publisher of defamatory matter is equally liable for its publication’. Drawing particular attention to Webb v Bloch where his honour stated that
persons other than the author of a libel “cannot employ the master mind … for the very purpose [of publication], accept its suggestions, approve and disseminate its production, and then disclaim its malice”.
The Court found that Google ‘encouraged and facilitated’ Mr Shanks in his harassment of Mr Barilaro ‘both before and after Mr Shanks settled the defamation claims against him’ and that Google ‘did so with a view to its commercial profit’. In addition, the Court held Google’s decision to continue publication especially egregious given the numerous breaches of Google’s policies and despite Google having ‘put itself forward to the public as having policies’ that would protect individuals from such content and harassment.
In awarding Mr Barilaro aggravated damages in the amount of $755,000 plus costs, the Court drew particular attention to the public office held by Mr Barilaro. The Court also denied Google’s argument any liability commenced on the date that Google became aware of the defamatory matter. While Mr Barilaro ‘could [as part of his public office] expect many people [to disagree] with his policies … expect public criticism and condemnation for his political conduct and stances’ the Court held that, Google’s ‘publication of [these materials] drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly’, giving rise to Mr Barilaro’s entitlement to aggravated damages. Barilaro, therefore, confirms not only that internet platform can be held liable for publication of the offending content from the date of notice, but that liability can accrue from the date of publication and that the failure to act in accordance with the published policies may be an aggravating circumstance in the awarding of damages.
Publication via other means
Beyond the precise circumstances of Voller and Barilaro, these decisions provided further guidance on the element of publication via other digital means.
Given that search engines function precisely as signed by their operators, search engines such as Google cannot claim a merely passive role as a publisher of those search results. Instead, there is a proximate causative link between the application of the search engine and the publication of any defamatory results.
Publishers of public and online forums are more likely to be considered publishers than the administrators of Facebook pages and other third-party page administrators given their greater level of control over the procurement and content of available online comments. In addition the publication and organisation of these sites – making them more readable and accessible to the public – indicates a closer facilitation of publication for three reasons:
- ‘They invite communication on a particular subject matter;
- They have a greater capacity to read [because of the smaller volume of content and its form]; and
- They have the practical capacity to control the content of their website.’
Blogs and Hyperlinks
Blogs are considered to be somewhat similar to a community noticeboard. The UK case of Tamiz v Google Inc suggests that a finding of publication may require a failure to remove the defamatory matter within a reasonable amount of time. This position was cited with approval in Voller. The inclusion or sharing of a hyperlink appears even less likely to qualify as publication as it is ‘essentially a reference to other material rather than a republication of [it]’. According to Justice Steward (dissenting), ‘referencing on its own does not … [exert] control over the content … Even where the goal [of the reference] to a defamatory publication is to expand that publication’s audience, [the publication is] merely ancillary to that of the original publisher.’
As the law in this area continues to expand, common law developments will play an important role in establishing precise limits of publisher’s liability. Much of the concern related to Voller sprang from an incomplete rendering of the facts or misleading headlines that sought to shock rather than inform. The fact remains that publication is a question of fact that depends on the circumstances of each case. Test cases such as Voller and Barilaro provide crucial guidance on how existing laws can apply while legislative reforms such as the Defamation Amendment Act 2020 (NSW) and the Social Media (Anti-trolling Bill) (Cth). address more pressing matters of public and political concern.