Defamation in the digital age.

1. “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.”[1]

These were the observations of Kirby J in Dow Jones & Company Inc v Gutnick[2] 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.

2. 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.

3. In more recent time, Judge Gibson in Rothe v Scott[3] 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’”.[4] 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”.[5]

Who is the publisher?

4. 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.

5. Those not engaged in a publishing enterprise or process, for example the owner of a bus shelter[6], would not ordinarily be considered the publisher of material which another had glued to it — unless and until aware of that material and approving its continuing to be so affixed.

6. 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 (or main) publisher or a secondary (or subordinate) publisher.

7. In the case of a primary publisher (e.g. author, print or broadcast media publisher), he or she would be held responsible for the publication of the defamatory material. In the case of a secondary publisher (e.g. a newsagent, bookseller), he or she would not be so held, where they showed they were not aware (and that lack of awareness was not unreasonable in the circumstances).

Who is the publisher in the digital age?

8. Whilst an author/sender of such a communication (e.g. email or the posting of material on a website or webpage) received in comprehensible form by a third party is (unremarkably) a publisher (and indeed a primary publisher) of that communication, the Courts have also had to consider whether internet service providers (ISPs), website hosts and search engines can be publishers of material compiled or authored by a third party user.

9. 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 a direct electronic communication between a sender and one or more recipients to whom that communication is directed, without having the capacity to exercise control over the content (in a similar way to that in which a telecommunications company facilitates telephonic communication between one or more people), the provider of that service is not a publisher.

10. On the other hand, where the provider hosts (or owns) a website on which third party users are encouraged to post blogs, comments or other electronic communications for downloading by subscribers, members or the public at large and has the capacity (whether before or after such posting online) to exercise editorial control over content, e.g. 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.

11. Further, in the case of search engines such as Google, Courts in Australia have held that they are publishers of search results, including hyperlinked material (at least where search result snippets repeat the defamation in that material).

What is the difference between a primary and secondary publisher?

12. 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 e.g. 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. [7]

Bilateral Publication

13. There is however an additional factor, not ordinarily an issue (or at least not a contentious one), in non-electronic communications. As the High Court plurality in Gutnick[8] 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.[9]

14. 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 again and again in subsequent decisions relating to electronic communications

15. In Sims v Jooste No 2[10] the plaintiff complained of words written about him by the defendant in June 2010 on the HotChopper website, an internet chat forum. At trial, the question was in fact, if anyone had ever read these words. At trial the Plaintiff did not call any witnesses who might have attested to actually having seen and read the words complained of on the HotChopper website and his claim failed as a consequence.

16. This decision was upheld on appeal where Martin CJ stated:

The bilateral nature of ‘publication’, when that word is used to connote the essential element of a cause of action in defamation, can give rise to difficulties of expression, as the natural and ordinary non-legal meaning of the word ‘publishing’ and its cognate words includes the unilateral act of the publisher in publishing the words, irrespective of whether those words are ever comprehended by a third party. It was clear during argument that Mr Sims was at a significant disadvantage because he was construing the word ‘publication’ in its non-legal sense – that is, to connote the publisher’s act of publication irrespective of whether the words published were ever seen or comprehended by any third party.[11]

17. Further, under the current legislation, each such downloading to a third party comprises a discrete potentially actionable defamatory publication. We will deal with the proposed amendment to this later.

Innocent Dissemination

18. As was highlighted by the primary Judge in interlocutory proceedings in Voller[12] (but not dealt with by the Appeal Court), the distinction between a primary and secondary publisher 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”[13].

19. Primary publishers are irrefutably presumed to have such knowledge and to be responsible for the defamatory material they have published: the defence is not open to them[14].

20. The onus is on the secondary publisher to prove the defence and, where (and for as long as) the defence would otherwise apply (e.g. 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 put on specific notice of it by the defamed person and given reasonable time to consider and remove it.

21. The currently proposed amendments to the Defamation Act do not alter this defence.

Google Inc v Duffy

22. In these proceedings Dr Duffy paid for and received psychic readings over the internet. Those readings were false. Dr Duffy engaged in an online conflict with the psychics. Defamatory articles about the Dr Duffy, calling her among other things a ‘psychic stalker’ and referring to her conflict with psychics were published on a website called the Ripoff Report. Other US websites published material which derived from articles on the Ripoff Report (collectively the underlying webpages). When Google’s search engine was used to search Dr Duffy’s name it reproduced content from, and hyperlinked to, the underlying webpages. The Autocomplete function of the search engine also produced an alternate search term ‘Janice Duffy Psychic Stalker’. In September 2009, Dr Duffy requested that Google remove the paragraphs. Google did not take steps to remove the paragraphs until March 2011.[15]

23. At trial, Justice Blue found Google to be liable as a secondary publisher of the defamatory material.[16] Google appealed to the Full Court denying it was a primary or secondary publisher but that it was a mere passive conduit and analogised itself to a telecommunications carrier – emphasising the automated nature of its functioning.[17]

24. On appeal, the Full Court agreed with Justice Blue that Google was a (secondary) publisher. Kourakis CJ said at para [154]:

Google established the algorithm and programmes of its search engine and made that search engine available to all users of the internet. At the time of a search, Google, by the mechanism of its search engine, produces the snippet paragraphs, albeit at the request of its user. That conduct made Google a participant in the publication of the content of the paragraph to the person making the search even though that content derived from and was an electronic reproduction of, a webpage published by a third person. Google participated in the publication of the paragraphs about Dr Duffy produced by its search engine because it intended its search engine to do what it programmed it to do.[18]

25. Chief Justice Kourakis undertook an analysis on a publisher in the digital age at [141] – [146] of his judgment[19]. He said:

[141] Webpage masters of internet forums or web-based bulletin sites which receive communications electronically but then make them readable in an organised manner by visitors to their webpages are in a very different position. Hosts of those webpages more closely facilitate the publication of material, on their sites because:

• they invite communications on a particular subject matter (indeed, comment and discussion is the very purpose of such sites);
• they have a greater capacity to read both by virtue of the form it is in and the more limited quantity of material they receive in comparison to the data for which telecommunications cable provider or an ISP is a conduit; and
• they have a practical capacity to control the content of their website.

[142] Accordingly, the hosts of webpages which invite discussion have been found to be publishers at common law in Godfrey v Demon Internet Limited, and Metropolitan International Schools Ltd (trading as SkillsTrain and/or Train2Game) v Designtechnica Corp (trading as Digital Trends) (Metropolitan International Schools).

[147] The public policy interest in treating webpage hosts as secondary publishers may be even greater if they have no capacity to vet postings in advance of them being read.

26. Google was found to be publishers of search results, including hyperlinked material, at least where search result snippets repeat the defamation in that material – at paras [160] to [170].[20]

Defteros v Google LLC

27. In Defteros v Google[21] the plaintiff was a Melbourne solicitor who specialised in criminal law. A number of men who became notorious figures in the Melbourne gangland wars were his clients. In June 2004 he and another Melbourne gangland figure were charged with conspiracy to murder and incitement to murder of Carl Williams, his father and body guard. In August 2005 the charges were withdrawn against the plaintiff and his co-accused was murdered the day before his trial. This was highly publicised.

28. In early 2016 he became aware that an internet search of his name produced search results including a snippet of an article published by The Age on 18 June 2004, (referred to throughout the judgment as the Underworld article). He issued proceedings against Google for defamation in which Google denied being the publisher as well as a number of other defences.

29. During 2017 the plaintiff became aware of further publications on Google which he asserted defamed him. These included:

29.1 A composite image of four photographs – one of the plaintiff and three of Melbourne gangland figures (First Matter).

29.2 These images hyperlinked to an article published by The Age on 3 August 2004 referred to as the Gangland article (Second Matter).

29.3 Another image containing two photographs of the plaintiff and some derisive text (Third Matter).

29.4 Wikipedia article (Fourth Matter).

In the same year he sued Google, for the second time, as the publisher of these matters.

30. Google denied being the publisher of the second and fourth matters, said none of the matters were defamatory and raised a number of other defences.

31. The Court was asked to determine whether Google was the publisher in terms of the search results and the Undwerworld article, Gangland article and Wikipedia article.

32. The Court was required to further consider whether Google was a publisher of hyperlinked material. Whilst this question had been answered by the SA Full Court [note: Defteros is a VIC decision.] in Duffy the Court considered the question “does Google publish defamatory material on a third-party webpage that is reached by a user who clicks on a hyperlink within an apparently neutral search result?” was still to be determined as Duffy only dealt with the hyperlink containing defamatory material.

33. At paras [48] – [55] Richards J found that Google was the publisher of ‘content neutral’ hyperlinked material. In the reasoning for rejecting Google’s argument that it does not publish a defamatory article on a third party webpage, reached by clicking on a hyperlink in a Google search result, unless the search result itself incorporates the defamatory material from that webpage Her Honour said at para [53]:

My second reason for rejecting Google’s submission is that, as a matter of logic, whether a person publishes a matter cannot depend on whether the matter carries a defamatory meaning. It is one question whether a defendant publishes a matter – whether it be a book, a newspaper article, a cartoon, or a webpage – and another question whether the matter carries defamatory imputations. Both are elements of the tort of defamation. In this case, both are in issue.[22]

34. Further at para [55] Her Honour considered exactly what is a hyperlink:

A hyperlink is more then simply a reference to where information can be found on the Web. A closer analogy is a librarian who, instantaneously, fetches a book from the shelf and delivers it to the user, bookmarked at the relevant page. All that is left for the user to do is to open the book and read it.[23]

35. Ultimately the plaintiff in this matter was only partially successful. He was awarded $40,000 for the 2016 proceedings which related to the Underworld article.

36. The 2017 proceedings were dismissed on the following basis:

36.1 The First Matter – A composite image of four photographs – one of the plaintiff and three of Melbourne gangland figures: Google was found to be a publisher between 27 September 2017 and March 2019 to around 500 people. The Court however found that it did not convey the imputation that the plaintiff was a criminal associate of the Melbourne underworld figures, Mario Condello, Carl Williams and George Williams.

36.2 The Second Matter -These images hyperlinked to an article published by The Age on 3 August 2004 referred to as the Gangland article: Google was found to be a publisher between 27 September 2017 and March 2019 to around 100 people. The court found that this did not convey the imputation that the plaintiff hatched a plot to kill Carl Williams, or that he attempted to arrange for the killing of Carl and George Williams.

36.3 The Third Matter – Another image containing two photographs of the plaintiff and some derisive text: Google was found to be a publisher between 27 September 2017 and March 2019 to around 1,200 people. The court found that this did not convey the imputation that the plaintiff should not be entitled to practise as a lawyer, that the plaintiff should not be a lawyer or the plaintiff is a criminal associate of the Melbourne underworld.

36.4 The Fourth Matter – Wikipedia article: Google was found to be a publisher of the Wikipedia article on about 25 occasions between 27 September 2017 and end of November 2017 and that the article conveyed the defamatory imputation that the plaintiff was a criminal associate of the Melbourne underworld group, the Carlton Crew. Google was however successful in establishing defence of triviality in the circumstances that the publication was only to 25 people.[24]

37. This case is currently on appeal to the Victorian Full Court.

Fairfax Media Publications & Ors v Voller

38. In Voller v Nationwide News Pty Ltd & Others[25] the Plaintiff argued that the news outlets which host Facebook pages are responsible for defamatory third party comments on those pages.

39. In this case the plaintiff was suing the media outlets for defamation based on the content of third party posts on the Facebook pages maintained by the defendants. The Court considered as a preliminary point “Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users that are alleged to be defamatory?”[26] It also questioned whether the defence of innocent dissemination was available.

40. The plaintiff argued that the hosts (print media publishers) posted provocative material about his mistreatment in a youth detention centre 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.

41. The court was required to understand the involvement of the third party users, the hosts and Facebook in the comments. The court found[27]:

41.1 Each host published a link on its public Facebook page on which a story was introduced with an image, a headline and a comment about the article. The link allowed people to access the full article.

41.2 That host measured the number of visitors to its Facebook page and its website for the purpose of negotiating rates with advertisers.

41.3 The host is alerted by Facebook each time a third party user comments or likes one of their publications.

41.4 The Administrator of the host’s Facebook page has the ability to be able to hide or delete comments. If a comment is hidden it can only be seen by the person who has written it, that person’s friends and the Administrator. It will appear in a grey colour so the person who wrote it will be aware that it has been moderated. The Administrator may choose at a later time to make this available. If it is deleted then no one will see it.

41.5 The host is able to interact with comments by liking, reacting, mentioning or sharing the third party user’s publication.

41.6 The host can ban or block specific usernames, profanities or offensive words

41.7 Facebook will also rank particular comments that are liked, shared or further commented on and give a priority to that comment.

41.8 Evidence was given that the Administrators of Fairfax post approximately 50 comments a day and each post can receive anywhere from 100 to thousands of comments.

A full list of the factual conclusions regarding the operation of the Facebook pages is at para [90] of the judgment.

42. In the deliberation of whether or not the hosts were publishers the court had to consider the hosts capacity to control:

One of the other differences in relation to a public Facebook page is that the comment compiled or authored by the third-party user is not published until such time as the owner of the public Facebook page allows persons to read it, or, in the words of the High Court in Gutnick, it is the owners of the public Facebook page that would render the material comprehensible and allow it to be downloaded.[28]

Further, the Owner/Administrator of a public Facebook page, of the kind here relevant, is capable of rendering all or substantially all comments hidden, which would mean they were unable to be downloaded or accessed by any person with a Facebook account, except the administrator, the third-party commentator and Facebook friends of the third-party commentator. Thus, the extended publication of the comment is wholly in the hands of the media company that owns the public Facebook page.[29]

43. At para [228] His Honour stated:

In conclusion, the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates. As a consequence of that classification, the defence of innocent dissemination would not arise. That latter aspect is not, strictly, necessary to answer the question that has been posed.[30]

44. Unsurprisingly, the decision was appealed by the defendants.

45. The Court of Appeal (Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller[2020] NSWCA 10) ultimately confirmed that the defendants were publishers but did not making any finding as to whether they were a primary publisher or a secondary publisher with the defence of innocent dissemination available to them.

Common distinct features of online publications

46. It is important to note certain characteristics that distinguish publications in the digital age of social media and the Internet generally from those in more traditional forms. A useful consideration of these characteristics is provided by Judge Muir (of the Queensland District Court) in Brose v Baluskas & Others.

47. In that case[31] the Plaintiff was the principal of Tamborine Mountain High School in Queensland. On 15 February 2016 she was suspended from this role pending the outcome of an investigation into alleged inappropriate conduct by her as a principal. The school community was told that she was on leave but the knowledge that she had been suspended filtered out immediately creating speculation and rumours as to her suspension. The president of the Parent and Citizens Association at the school established an online petition asking for her immediate reinstatement and a Facebook page called “Support Tracey Brose”. The forums were shut down 6 days later. Over 600 people signed the petition and there were over 350 comments most of which were supportive and complimentary and around 9% were critical and unsupportive. She was reinstated as principal shortly after and issued proceedings against 8 of 34 individuals who critisised her online.

48. The defendants relied on the defences of triviality, justification, honest opinion and contextual truth. She settled with the 4^th, 5^th and 8^th defendants for $182,500 and settled with the 7^th defendant for an undisclosed amount.

49. The Court after considering the nature of online defamation made orders that the 1^st and 2^nd defendants were to pay the plaintiff $3,000 each and they be injuncted from publishing the matter complained of again and the claim against the 3^rd and 6^th defendants were dismissed.

50. The Plaintiff appealed the decision to the Full Court. The appeal was 9 days out of time and was ultimately refused.[32]

51. At the beginning of Her Honour’s reasoning she set the tone of the judgment:

The law of defamation seeks to strike a balance between, on the one hand, society’s interest in freedom of speech and the free exchange of information and ideas from all parts of society, and, on the other hand, an individual’s interest in maintaining his or her reputation in society free from unwarranted slur or damage. Defamation laws vary from country to country but courts and legal scholars worldwide have recognised the struggle to achieve this balance, and acknowledged that the growing body of case law involving Facebook and other social media platforms “require[s] courts to map existing defamation doctrines onto social media fact patterns in ways that create adequate breathing space for expression without licensing character assassination.[33]

52. Judge Muir pointed to six propositions in considering “the more general and commonly known characteristics of social media”

52.1 It is relatively unregulated[34]

Most online platforms require users to accept standard terms of service on how the forum is to be used. However in practice these providers rarely want to get involved and intervene if there is a breach of their terms of service and the moderation and regulation is largely inconsistent. In the case of Voller, which was discussed earlier, sometimes the Administrator or Moderator, takes on this responsibility of regulating and enforcing terms of service or behaviours.

52.2 It has similarities to ‘pub chat’[35]

Online forums and social media are perfect platforms to allow people to make ill-informed, false or exaggerated allegations and air specific personal grievances in obnoxious manners.

Eady J distinguished online discussions from more traditional, journalistic outlets by noting they resemble “contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’… People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contribution if they feel inclined, and think no more about it”.[36]

52.3 It has the capacity to change the interpretation of the ordinary, reasonable reader[37]

The ordinary reasonable reader will likely be aware of the potential for unreliability and false or exaggerated claims in social media posts. This may result in their not attaching too much credence to many such posts. Justice Muir found that the ordinary, reasonable reader would be aware of the lack of thorough or consistent moderation and the reputation of social media to contain false and exaggerated claims and as such would employ a more critical eye when interpreting social media post.

This will lead to a more critical review of not just who the ordinary reasonable reader is in the specific circumstances but of what they may have understood from their experiences.

Careful consideration of these cues is not unfamiliar to defamation: e.g. case law suggests that the placement of a publication in the editorial section or gossip column of a newspaper will identify to readers that it contains more assertions or opinion than facts.[38] The difficulty in scrutinising publications in the digital age is not only identifying the ordinary reasonable reader but how that reader would interpret the reliability of that information, especially where the same information can appear on different forums.

52.4 It is difficult to identify the ordinary reasonable reader[39]

Publications online can vary drastically in terms of scope of publication e.g. some online publications are capable of being viewed by a global audience, others by a relatively small community group dedicated to a particular topic.

The test established by case law is: “the hypothetical reader is taken to be representative of those who would read the publication in question”.[40]

52.5 It has unique features which impact the interpretation[41]

Online publications allow for the author to post a number of pictures, non-standard characters and emojis which affect the manner in which the publication is to be understood and interpreted.

The first Australian judgment on whether emojis can convey defamatory imputations was recently handed down in August. In Burrows v Houda[42] Her Honour Judge Gibson found in a preliminary argument that emjois can convey defamatory imputations.

52.6 It is multi-dimensional[43]

This is perhaps the most challenging aspect of online publications.

Publications are very rarely read in isolation especially when the reader is interested and has information available at the touch of a button. The interpretation of one particular comment can be greatly affected by others, even ones posted later. This means that the publication can mean one thing when read in the context at one point in time and something subtly different at a later point in time. This makes the task of assessing any defamatory imputation of a particular publication even more difficult.

Foreshadowed changes to the law

53. This paper is not intended to conduct a review of Parliamentary Counsel’s Committee Model Defamation Provisions. However, we will address those proposed changes that appear most relevant to online defamation. These, in particular, include the proposed addition of a serious harm threshold to the cause of action and the single publication rule.

Serious harm element of cause of action to replace triviality

54. It is proposed that section 10A will be inserted into the Defamation Act which will read:

10A Serious harm element of cause of action for defamation

(1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation referred to in section 9 is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

(3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.

Jurisdictional note. The reference to a jury may be omitted in those jurisdictions that do not provide for jury trials for defamation proceedings.

(4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion):

(a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial, and

(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).

(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following:

(a) the cost implications for the parties,

(b) the resources available to the court at the time,

(c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.

(7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

(8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).

55. The proposed amendments also remove the current defence of triviality.

56. The serious harm test is not an entirely foreign concept as it has been earmarked as a likely amendment for some time similar to the legislative requirement in the UK: section 1 Defamation Act 2013 (UK); Lachaux v Independent Print LTD & Anor [2019] UKSC 27.

57. This principle was to a degree addressed by McCallum J in Bleyer v Google Inc[44] where a permanent stay of defamation proceedings was granted “on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of proportion to the interest at stake” and “such disproportionality can properly be regarded as a species of abuse of process”.[45] This was dealt with as a preliminary point.

58. Justice McCallum also discussed the requirement of a threshold of seriousness (which had previously been recognised (at that point) in the English Courts) in Kostov v Nationwide News Pty Ltd[46].

59. The plaintiff had issued proceedings over an article published in The Daily Telegraph in print and online. The article was titled “Hedging a bet; fund director’s plea for coke-dealing boyfriend” and concerned a letter the plaintiff wrote to the court for the sentencing of her boyfriend who had pleaded guilty to supplying cocaine. The article’s interest point was at to the plaintiff’s status (she had previously worked as a hedge fund director employed by Gina Rinehart) and how she had written a letter in support of a man who had pleaded guilty to supplying cocaine.[47]

60. In a preliminary argument the defendant argued firstly the imputations were not made out and secondly, even if the matters complained of were capable of conveying the defamatory meanings, the claim did not surmount the ‘threshold of seriousness’ requirement.

61. Whilst sympathetic to the plaintiff and acknowledging her upset, McCallum J did not find the article defamatory. She did however consider at paras [31] – [45] as to whether there is a defamation threshold of seriousness requirement at common law:

[31] – [37] The defendant alternatively submitted that, even if the matter complained of is capable of conveying some defamatory meaning, it would not meet the threshold of seriousness required for an action in defamation to be maintained in the Court. The existence of such a requirement has not previously been acknowledged in Australia. The defendant’s argument derives principally from the decision of Justice Tugendhat in the English case of Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2011] 1 WLR 1985. That was a case in which the author of a book sued over the publication of a review of the book published in The Daily Telegraph in the UK. Part of the plaintiff’s complaint related to the following words in the review:

“She also claims that she practises ‘reflexive ethnography’, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this ‘copy approval’ and disapprove.”

The plaintiff contended that those words conveyed the following meanings:

“That she had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as ‘copy approval’;
That she had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.”

The newspaper sought summary judgment in respect of that part of the claim. One of the grounds for that application was the application of the legal principle referred to as “the threshold of seriousness”, which would hold that the hypothetical reasonable reader must not be unduly sensitive, so that there must be a threshold of seriousness before an action in defamation could properly be maintained in the Court. The argument was based in part on Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950 (entered into force 3 September 1953) which of course has no application in Australia. Separately, however, the principle was said to find support in binding common law principle. The newspaper submitted that the existence of a “threshold of seriousness” is supported by the following words of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1242:

“That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character; and are treated as actionable wrongs.”

Justice Tugendhat’s judgment includes a careful analysis of the various definitions of what is defamatory. In Australia, I would understand the test to be as set out at [14] above. In respect of that definition, the newspaper argued in Thornton that the test “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” is not a complete definition of what is defamatory and that the other part of the definition is “would the lowering of the plaintiff in the estimation of such people be sufficiently serious so as to surmount the threshold envisaged (but not defined) by Lord Atkin?” (at [81]).

Justice Tugendhat accepted that submission, holding at [90] that “whatever definition of ‘defamatory’ is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims”.

His Honour noted at [93] that the existence of a requirement of a threshold of seriousness would explain why the law of defamation presumes that damage has been suffered by a claimant. His Honour said:

“If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant.”

In my respectful opinion, there is much force in that reasoning. Justice Tugendhat’s carefully reasoned judgment has persuaded me that the definition of “defamatory” adopted in Australia must equally comprehend a qualification or threshold of seriousness so as to exclude trivial claims.[48]

62. The proposed addition of the serious harm requirement in the (Uniform) Defamation Act (and the removal of the defence of triviality) will shift the burden of proof to the plaintiff to establish serious harm (as opposed to the defendant establishing the defence of triviality).

63. This will likely have the effect of substantially reducing the number of online defamation claims, including of the kind which Judge Muir analogised to ‘pub chat’.[49]

64. Significantly, the proposed test will be as to whether the defamation has actually caused serious harm to reputation (or is likely to do so) and, it seems, will operate at the time of instituting proceedings (or perhaps of the trial itself) rather than predictively at the time of publication, as with the triviality defence (“the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”

Concerns Notices

1. New sections (12A and 12B) are proposed in relation to concerns notices. These expand upon the information required to be provided to include what the aggrieved person considers to be the serious harm to his or her reputation caused, or likely to be caused, by the relevant publication, and will ordinarily prohibit the commencement of defamation proceedings without a prior concerns notice and until after the (28 day) period for the publisher to make amends.

Proceedings generally to be commenced within 1 year and Single Publication Rule

66. Also proposed are amendments to section 37 of the Limitation of Actions Act in respect to the time limit for issuing defamation proceedings and by adding a single publication rule.

67. The proposed amendments to the time limitation period will retain the requirement to issue defamation proceedings within 1 year, but provide for a short extension where a concerns notice is given less than 56 days before the expiry of that period. In addition, they will somewhat liberalise the existing very strict limitation on the court’s power to extend the 1 year limitation period (for up to a further 2 years).

1 Proceedings generally to be commenced within 1 year

(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

(2) The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.

(3) The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires.

Example. Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.

(4) In this section: concerns notice has the same meaning as in the Defamation Act 2005.

1B Extension of limitation period

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period applicable under section 1 for the cause of action.

(2) The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

(3) In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to:

(a) the length of, and the reasons for, the plaintiff’s delay, and

(b) if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired:

(i) the day on which the facts became known to the plaintiff, and

(ii) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action, and

(c) the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.

1. The proposed addition of the single publication rule is in the following:

1A Single publication rule

(1) This section applies if:

(a) a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication), and

(b) the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same.

(2) Any cause of action for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when:

(a) the limitation period applicable under section 1 begins, or

(b) the 3-year period referred to in section 1B(2) begins.

(3) Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.

(4) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to):

(a) the level of prominence that a matter is given, and

(b) the extent of the subsequent publication.

(5) This section does not limit the power of a court under section 1B to extend the limitation period applicable under section 1.

(6) In this section:

associate of an first publisher means:

(a) an employee of the publisher, or

(b) a person publishing matter as a contractor of the publisher, or

(c) an associated entity (within the meaning of section 50AAA the Corporations Act 2001 of the Commonwealth) of the publisher (or an employee or contractor of the associated entity).

date of first publication, in relation to publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.

public includes a section of the public

69. In brief, the single publication rule will mean that ordinarily the 1 year limitation period for the issuing of proceedings in relation to online defamatory material accessible by the public or a section of the public will run from the date it is first uploaded for access or sent electronically, rather than (as at present, as multiple publications) separately from each date it is downloaded by anyone.

Potential further changes

70. The further Discussion Paper from the Council of Attorneys-General may be expected in the near future in relation to other possible changes which more specifically relate to online defamation. Given the media outrage at the Voller decision, the pressure to exempt the media and other hosts of interactive websites and public Facebook pages from liability for defamatory material posted by third party commentators (or at least substantially limit the applicable circumstances of such liability) will be great. It is recognised that they are protected in the USA by section 230 Communications Decency Act 1996 and (only slightly less comprehensively) in the UK by section 5 of its Defamation Act 2013. In our view, the exemption or substantial protection of interactive online platforms, particularly where these form part of the host’s business model to generate advertising or other revenue, should be resisted.

71. In any event, we consider that there is likely to be a very significant reduction in proceedings being instituted for online defamation, assuming the enactment of the foreshadowed changes regarding serious harm threshold, concerns notices and single publication rule. In addition, the courts are demonstrating an obvious capacity to identify and draw proper inferences from the distinctive characteristics of social media and other online platforms and should be allowed to continue in this process, without additional statutory interference, at least in the short to medium term.

[1] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, [164]

[2] (2002) 210 CLR 575

[3] (No 4) [2016] NSWDC 160

[4]Rothe v Scott (No 4) [2016] NSWDC 160, [141]

[5] ibid, [142]

[6] Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81

[7] Voller v Nationwide News Pty Ltd & Others [2019] NSWSC 766, [228]

[8] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575

[9] ibid, [26]

[10][2014] WASC 373

[11] Sims v Jooste No 2 [2016] WASCA 83, [8]

[12] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

[13] Defamation Act 2005 (SA) s30

[14] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766,[194], [228]

[15] Google Inc v Duffy [2017] SASCFC 130, headnotes

[16] Duffy v Google Inc [2015] SASC 125

[17] Para [154]-[155]

[18] Google Inc v Duffy [2017] SASCFC 130, [154]

[19] Google Inc v Duffy [2017] SASCFC 130

[20] ibid

[21] [2020] VSC 2019

[22] Defteros v Google [2020] VSC 2019, [53]

[23] Defteros v Google [2020] VSC 2019, [55]

[24] Defteros v Google [2020] VSC 2019, 334

[25] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

[26] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, [5]

[27] ibid, [90]

[28] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, [114]

[29] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, [116]

[30] ibid [228]

[31][31] [2020] QDC 15

[32] Brose v Arnold [2020] QCA 162

[33] ibid, [11]

[34] ibid, [68]

[35] ibid, [69]

[36] Smith v ADVFN [2008] EWHC 1797 (QB) at 14-16 per Eady J

[37] Brose v Baluskas & Others [2020] QDC 15, [71]

[38] Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139

[39] Brose v Baluskas & Others [2020] QDC 15, [72]

[40] Jeynes v News Magazines Ltd [2008] EWCA Civ 130 [14]

[41] Brose v Baluskas & Others [2020] QDC 15, [76]

[42] [2020] NSWDC 485

[43] ibid, [74]

[44] [2014] NSWSC 897

[45] ibid, [62]

[46] [2018] NSWSC 858

[47] ibid, [6]

[48] Kostov v Nationwide News Pty Ltd [2018] NSWSC 858, [31] – [37]

[49] Brose v Arnold [2020] QCA 162, [69]