The emerging and often murky area of Defamation Law and the internet

Defamation laws and the internetBy Ted Guthrie, Johnston Withers, Lawyers, Adelaide.

The old saying went: ‘Today’s news is tomorrow’s fish ‘n chips paper’. In previous times, a person defamed in news print media, would likely bring a speedy, angry and hurt defamation action. The news paper that wrapped up the fish ‘n chips was tossed in the bin. A victim of defamation in those days, was unlikely to have had to suffer from an ongoing, continuous repetition of a potentially prominent defamatory publication, well after it was first published.

However, with the advent of the internet, often there is no such thing as ‘tomorrow’s fish ‘n chips paper’. Newspapers will publish their articles online, so that they can continue to be viewed for many years after the initial publication. A person can be defamed on a social media site, such as Facebook, which will continue to be accessible, until such time (and if) the post is removed.

Of particular concern is that anonymous bloggers may establish posts or blogs to deliberately defame another, which by themselves might not be easily accessed deep in the darkest recesses of the world wide web. However, through search engines such as Google, Bing and Yahoo, these blogs can be given significant prominence, such that they will appear at the top of the list of search results for the entire world to see (quite literally, for anyone in the world connected to the web).

This situation will obviously be very distressing for a defamed person, who will often feel that they have no legal recourse to deal with the blog / blogger, as they cannot obtain or otherwise prove the identity of the blogger. Further, for professional or business clients, this scenario can be very damaging to them and their brand, and result in substantial losses.

However, the situation is not as hopeless as it might seem. Courts do have the power to make orders that websites which host anonymous blogs provide details of the identities of bloggers, which in turn may enable a client to take action directly against the blogger for defamation. Further, search engines will remove defamatory search results, in certain circumstances and in the event of an appropriately worded request for removal. In fact, in Australia, the Supreme Court of Victoria has held that it was open to a jury to find that Google is the publisher of defamatory search results and therefore liable for defamation where Google fails to remove or bar those results following notification by a plaintiff (see: Trkulja v Google Inc (No 5) [2012] VSC 533). However the Trkulja decision is certainly not the final word on the topic, and Google and other global internet giants continue to try to defend actions for defamation against them on the ground that they are not publishers – but merely transmitters of information (similar to telephone companies). So watch this space!

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