Who is liable for a defamatory publication?

 

The author is not the only person who is liable for a defamatory publication. Anyone involved in its publication and distribution may also be liable. For example, this might include printers, editors, publishers, retailers and even librarians.

However, it is possible for some people involved in the chain of publication (e.g. retailers and librarians) to escape liability by proving that they were an “innocent” or “subordinate” distributor of the material. In order to prove this, they would need to establish that they did not know the publication contained defamatory material, had no reason to suspect that it did, and that their lack of knowledge was not due to negligence. However, where a publication is ongoing (e.g. it’s published on the internet), once a distributor has been told that the publication contains defamatory material, then this defence may no longer be available to them, particularly if they have the capacity to restrain the ongoing publication.

The Broadcasting Services Act 1992 (Cth) (“BS Act”) (cl 91 sch 5) prevents internet content hosts and internet service providers from being liable for defamatory material transmitted using an internet carriage service – provided the internet content host or service provider was not aware of the nature of the material. The BS Act provides that an internet content host or service provider is not required to make enquiries about, or keep records of, internet content. This exemption from liability does not apply to information transmitted by email or for broadcasting (for more information, see The internet and the law).

In England, providers of internet search engines (e.g. Google) have been held not to be liable for publications accessible on websites identified by their search engines on the basis that they take no active steps in the publication of the material. However, this has not yet been embraced in Australia. In a recent Victorian case (Trkulja v Google Inc (No 5) [2012] VSC 533), a jury found Google liable for material accessible via its search engine. The trial judge refused to set that verdict aside, stating that the position in England did not necessarily reflect the law in Australia.

In another recent case involving Google (Trkulja v Google Inc [2015] VSC 635), the Victorian Supreme Court again rejected an argument by Google that they should never be liable for defamatory publications that are accessed via the Google search engine. The same argument was rejected by the Supreme Court of South Australia in Duffy v Google Inc [2015] SASC 170. However, the Supreme Court of NSW reached the opposite conclusion in Bleyer v Google Inc LLC (2014) 300 ALR 529, finding that Google could not be held liable as a publisher of defamatory material accessed via its search engine, except where a person has brought the existence of that material to Google’s attention and Google then refuses to take steps to remove the offending material from its search engine results. Therefore, the approach of the courts towards search engines like Google is not currently uniform.

There are provisions in the Public Records Act 1973 (Vic), the Freedom of Information Act 1982 (Cth) and the Information Privacy Act 2000 (Vic) that prevent legal action being brought against a public body releasing information to fulfil its duties under legislation. However, it is possible to sue the author of a document obtained through a freedom of information request.