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. To prove this, they 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.

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 public bodies releasing information to fulfill their duties under legislation. However, it is possible to sue the author of a document obtained through a freedom of information request.

Are internet content hosts and service providers liable?

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 does not apply to information transmitted by email or for broadcasting. (See The internet and the law.)

Are internet search engine providers liable?

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 been embraced in Australia. In a 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 case, the Supreme Court of South Australia, in Duffy v Google Inc [2015] SASC 170, rejected an argument by Google that they should never be liable for defamatory publications that are accessed via the Google search engine.

However, the Supreme Court of New South Wales 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 refused to remove the offending material from its search engine results.

That approach was recently adopted by the Victorian Court of Appeal in another case involving Google (Google Inc v Trkulja [2016] VSCA 333).

Therefore, the position is that Google can be held liable for defamatory search results generated by the Google search engine, but only where the plaintiff has brought the existence of those results to Google’s attention and Google refuses to take steps to remove the offending material from its search engine results.

However, the Victorian Court of Appeal in Google Inc v Trkulja [2016] VSCA 333 also found that the search results that were the subject of that case (a combination of ordinary internet search results, “image” search results and “autocomplete” search suggestions made by the search engine) were incapable of carrying any defamatory meanings to ordinary users of search engines. The court found that the ordinary user of a search engine understands that search engine results are not intended to convey any particular meanings, are simply an automated response to particular search terms selected by the search engine user and entered into the search engine, are generated almost instantaneously following an automated process of scouring the vast expanses of the internet, and often include results that are not responsive to the search terms selected by the person using the search engine. Accordingly, the ordinary user of a search engine does not interpret search engine results as conveying any particular meanings.

The Victorian Court of Appeal’s decision is the first comprehensive and authoritative Australian consideration of the liability of internet search engines for defamation. The result of the decision is that it is likely to be very difficult for a plaintiff to pursue a defamation claim against the operator of a search engine. At the time of writing (30 June 2017), the decision is the subject of a pending appeal to the High Court.