DEFAMATION ISSUES

Elizabeth Beal, Editorial Legal Counsel, Herald and Weekly Times Ltd

Unintentional meanings
Liability of ICHs and ISPs

For information on defamation generally, see: Chapter 24*2 Defamation.

In the 2002 decision of Dow Jones and Company Inc v Gutnick [2002] HCA 56, the High Court confirmed that the same laws govern defamation on the internet as govern defamation in other types of publications and that publication (one of the elements of defamation) occurs where the material is downloaded, read and comprehended by the reader. This case has been confirmed in subsequent decisions.

Unintentional meanings

The nature of the internet allows users flexibility in the ways in which they access and publish information. It is easy to add to a site via a website's comments pages or chat rooms, or publish content in blogs or on twitter. Unintentional imputations (the meaning conveyed by the material) may arise from words or images on a website that are linked to words or images on a different site or a different part of the same site. Independently words or images can be innocent, but when linked they may give rise to a defamatory meaning. In certain cases the publisher of one site may be responsible for the replication of defamatory material appearing on a linked site.

Liability of ICHs and ISPs

Uniform defamation Acts that came into effect in January 2006 include a defence of "innocent dissemination" for subordinate distributors. This means that defamation actions can be defended provided the ICH and ISP:

was not the first or primary distributor of the matter;
was not the author or originator of the matter; and
did not have any capacity to exercise editorial control over the content before it was published.

For more information about the uniform defamation Acts, see: "What is defamation" in Chapter 24*2 Defamation.