Court considers role of search engine as defamation "publisher" – but declines to find automatic immunity

17 March 2017

As noted in the 2016 Victorian Supreme Court case of Google Inc v Trkulja [2016] VCSA 333 (at [13]), “Defamation is a difficult area of the law, even for experienced practitioners and for judges having familiarity with the law of defamation. The difficulty is magnified in the context of the interrelationship between defamation law and the internet.”

Part of that difficulty comes about because many of the historical authorities arose in circumstances of physical publication, such as print media or notice boards, where the extent of publication could be clearly defined, and where removal of any defamatory material was a (reasonably) simple task.

The internet has changed the historical landscape of defamation cases, as a large number of defamation cases now tend to arise from online publications, often on social media sites. Trying to rely on historical authorities for guidance in circumstances where publication can now be almost instantaneous, potentially to millions of people, and where the party making the alleged defamatory publication often does not control the platform on which the publication is made (and therefore may not be able to remove that material), can lead to some unnatural and unexpected outcomes.

The Court in Trkulja acknowledged this, “warning against the idea of there being a ‘one size fits all’ analysis of publication in the context of the internet” and finding that “to speak of the operation of defamation principles in the context of the internet is an oversimplification which is apt to mislead“.

Accordingly, whilst some guidance can be drawn from previous defamation cases, Trkulja has confirmed that the Courts will continue to assess each case on its facts. This may be a comforting outcome for some, but it does make it challenging to assess the likelihood of success of any particular defamation claim, especially those arising from online publications.

Another related issue, which was also the subject of Trkulja, is whether, and how, an internet service provider can be a “publisher” of defamatory material. The Court ultimately found that:

  • The only case open to the plaintiff here was on the basis that Google was a secondary publisher, but the plaintiff’s case rested solely on the basis of primary publication, making it ultimately unarguable; and
  • In any event, the plaintiff’s case was doomed to fail as the alleged publications were not capable of defamatory meaning, or did not carry any defamatory imputations.

The Court was also asked to consider whether, as a policy, “the owner/operator of a search engine ought have immunity from liability in a defamation proceeding when liability is said to depend on publication of automatically generated materials returned by the search engine in response to an individual user’s query” – in essence, whether search results alone (as compared to the underlying content reachable from the search) can be considered defamatory.

However the Court declined to deal with the question, finding that “if there is to be any immunity in favour of a search engine from liability for defamation, it must be conferred by legislation“.

Parliament has yet to take up the Court’s invitation on this point but, if the trend towards claims against search engines continues, we expect that this may soon become a key area of proposed reform.

Similarly, with significant uncertainty around a defendant’s liability for unknown third party content (when defendants hosting third party content are threatened with liability for comments posted without the defendant’s knowledge), momentum may also build around reform to introduce a “safe harbour” there as well, especially as other jurisdictions appear to recognise the need to provide some ‘grace period’ until a defendant becomes or has been made aware of the existence of the offending material.

HWL Ebsworth provides advice to clients on liability for defamation and represents clients in defamation proceedings throughout Australia and in the High Court.  For further information about how we can assist, please contact a member of our team.

This article was written by Peter Campbell, Partner and Rebecca Sandford, Associate.

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