Do defamation laws need to be updated in the digital age? (part 1)
16th Jul 2020
‘Intuition suggests that the remarkable features of the internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.’
These were the observations of Kirby J in Dow Jones & Company Inc v Gutnick and are as true today as they were in 2002. At the time of Kirby J’s remarks, and even at the enactment of the (Uniform) Defamation Act three years later in 2005, Facebook, Twitter or Instagram did not yet exist, and social media was in its relative infancy.
Since then, social media and the use of the internet have evolved in a manner that neither the legislators nor Kirby J could have foreseen, allowing defamatory material to be published and accessed in unprecedented ways.
More recently, Judge Gibson in Rothe v Scott described ‘defamation actions in relation to social media allegations of an extreme nature, generally without any basis and driven not by mere malice but some kind of internet “road rage”’. She attributes this to ‘the anonymity, instantaneousness and wide-ranging reach of the internet and social media makes it a dangerous tool in the hands of persons who see themselves as caped crusaders or whistleblowers, or alternatively want to humiliate or “troll” other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention.’
Who is a publisher?
In the pre-digital age, those participating knowingly in the creation and/or dissemination of written, graphic or broadcast material were all held to be publishers of that material to a third party. In addition to authors, they included print and broadcast media publishers, editors, printers, newsagents, booksellers and librarians. Those not engaged in a publishing enterprise or process, for example the owner of a bus shelter, would not ordinarily be considered the publisher of material which another had glued to it – unless and until they were aware of that material and approved its continuing to be so affixed.
As the High Court plurality in Gutnick indicated:
‘Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.’
In a defamation case, having determined that a person was a publisher (A) of material defamatory of another (B) to a third party (C), the court would then, where relevant, consider whether that publisher was a primary publisher or a secondary publisher.
This requirement for a bilateral act where a third party (C) has downloaded in comprehensible form material defamatory of another (B) before an apparent ‘publisher’ (A) of that material may be treated as having published it to that third party (C) has been emphasised repeatedly in subsequent decisions relating to electronic communications. Further, each such downloading to a third party comprises a discrete potentially actionable defamatory publication.
Where an electronic communication (for example, an email or the posting of material on a website or webpage) is downloaded by a third party in comprehensible form, its author/sender is (unremarkably) a primary publisher of that communication.
Less obvious perhaps is the status of internet service providers (ISPs), website hosts and search engines in relation to material compiled or authored by a third party commentator. It seems that, where (as in the case of an ISP) the service provided is merely the facilitation of direct electronic communication between the sender and one or more recipients to whom that communication is directed, without having the capacity to exercise control over content (in a similar way to that in which a telecommunications company facilitates telephonic communication), the provider of that service is not a publisher.
On the other hand, where the provider hosts (or owns) a website on which third party commentators are invited to post blogs or comments and has the capacity (whether before or after such posting online) to exercise editorial control over content, for example, by removing or ‘hiding’ material, then the courts have found such provider to be a publisher of that material, in addition to the author/sender of the post.
What is the difference between a primary and secondary publisher?
Publishers who have the capacity to remove or ‘hide’ third party content from their site but only after it has been posted and become accessible for downloading by others have generally been held to be secondary publishers. However, where website hosts (such as in the case of Voller) have the capacity to exercise editorial control before such publication, for example, by ‘hiding’ the defamatory material before it becomes accessible for downloading by others (apart from Facebook ‘friends’ of the author/sender), they may be held to be primary publishers.
The distinction is important, because secondary publishers of defamatory material may rely on the common law or statutory defence of innocent dissemination where they prove they ‘neither knew, nor ought reasonably to have known, that the matter was defamatory’.
Primary publishers are irrebuttably presumed to have such knowledge and to be responsible for the defamatory material they have published: the defence is not open to them.
The onus is on the secondary publisher to prove the defence and, where (and for as long as) the defence would otherwise apply (for example, in the case of a search engine in respect of defamatory search results algorithmically generated) the secondary publisher will not be liable for any publication of such defamatory material until they have been put on specific notice of it by the defamed person and given reasonable time to consider and remove it.
See next week’s Opinion for part two of this article and find out the common distinct features of online publications and what changes should be made to defamation laws.
This is an edited version of an article that first appeared in The Bulletin, the journal of the Law Society of South Australia, vol. 42, issue 5, published in June 2020, pp16–18.
Richard Bradshaw is widely regarded as one of Australia’s leading practitioners in the area of Aboriginal land rights. Starting his working life as a commercial lawyer, Richard initially practised in England and Wales. He migrated to Australia in 1978 and, after three years practising commercial law in Sydney, he was appointed a Senior Legal Officer (and subsequently the Principal Legal Officer) of the Pitjantjatjara Council based in Alice Springs. There he used his considerable skills to advise the Council on land, mining, commercial and other legal issues. Richard joined Johnston Withers in 1990 and became a Director of the firm in 1996, bringing with him his expertise in Aboriginal land rights and native title, defamation and commercial law.
Richard has been a member of the Law Society of South Australia’s Aboriginal Issues Committee since its inception in 1997 and has authored and presented many papers on land rights and native title.
Richard’s other primary area of practice is defamation law. He was involved in the landmark Chakravarti High Court decision which resulted in Johnston Withers’ client being awarded what was at the time the state’s highest defamation payout. He has represented a number of high-profile clients (including South Australia’s then Premier, Mike Rann) in their defamation actions.
Richard also practises in commercial law matters generally.
Caitlin Walkington is a long-time member of Johnston Withers Lawyers, commencing work as a law clerk in 2011 and then continuing on as a solicitor after her admission in 2016. Caitlin is a member of the commercial law team and wills and estates team, assisting clients with a broad range of transactional and commercial litigation matters. Caitlin has a particular interest in estate planning and disputes, defamation (social media claims) and regularly appears in the magistrates, district and supreme courts.
Caitlin prides herself in being able to simplify complex legal ideas and effectively manage and reduce clients’ stress.
Like many of Johnston Withers’ staff, Caitlin hails from the country and loves regularly goes back to visit family in Jamestown. Outside of work Caitlin has a strong passion for gardening (spending hours in her veggie patch) and visiting friends and family in the country or at the beach.
Caitlin has volunteered for a number of community-run legal centres to help the disadvantaged including the Multicultural Community Council of SA, the Aboriginal Legal Rights Movement Inc. and the Consumer Credit Law Centre SA.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 (Gutnick), .
 Rothe v Scott (No 4)  NSWDC 160, .
 Ibid, .
 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81.
 Gutnick, above note 1, .
 Eg, Sims v Jooste No. 2  WASCA 83.
 Bunt v Tilley  1 WLR 1243.
 See, eg, Google Inc v Duffy (2017) 129 SASR 304, – per Kourakis CJ.
Note: Google was found to be publishers of search results, including hyperlinked material, at least where search result snippets repeat the defamation in that material –, but compare Defteros v Google LLC  VSC 219, – where Richards J held Google to be publishers of ‘content neutral’ hyperlinked material.
 In Voller (Voller v Nationwide News Pty Ltd & Others  NSWSC 766), the hosts (in that case, print media publishers) posted provocative material on their public Facebook page with the obvious intention (as part of their business model) of generating interest and controversy for articles in their print and online editions (and advertising revenue) through potentially defamatory comments posted by third party users.
 Voller, above note 9, .
 Defamation Act 2005 (SA), s30.
 Voller, above note 9, , .