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 adopted by the Victorian Court of Appeal in another case involving Google (Google Inc v Trkulja [2016] VSCA 333); however, in 2018 the High Court overturned that decision.

Following the High Court’s decision, the position is that it remains open for a plaintiff to argue that Google is liable for defamatory search results generated by the Google search engine, whether or not the plaintiff brought the existence of those results to Google’s attention.

The High Court also overturned the Victorian Court of Appeal’s finding that the search results that were the subject of Google v Trkulja (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 High Court found it was at least arguable that the search results conveyed defamatory meanings, and that ultimately this was a matter for the jury to decide at trial.