The Law Handbook 2024

1010 Section 11: Rights, activism and fair treatment at work Who is liable for a defamatory publication? Overview 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 Privacy and Data Protection Act 2014 (Vic) that prevent legal action being brought against public bodies releasing information to fulfil their duties under legislation in specific circumstances. Are internet content hosts and service providers liable? The potential liability of internet content hosts and internet service providers is currently the subject of further anticipated amendments to the defamation law, as part of stage 2 of defamation law reform. For more information, see Model Defamation Amendment (Digital Intermediaries) Provisions 2023 (www.pcc.gov.au) and a 2022 background paper on model defamation amendments proposed in NSW (www.dcj.nsw.gov.au/about-us/engage- with-us/past-consultations/statutory-reviews/ review-model-defamation-provisions.html) . See also Chapter 7.5: The internet and the law. It is expected that legislative provisions affecting these matters may commence in 2024. 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. The position in Australia has developed significantly over the past 10 years. In 2012, in 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. Most recently, in 2022, the High Court overturned a decision of the Victorian Court of Appeal ( Defteros v Google LLC [2021] VSCA 167) that had upheld a decision that Google was a publisher of defamatory material on a third-party webpage reached through search-result hyperlinks a reasonable time after being notified of the defamatory material. The majority of the High Court justices ( Google LLC v Defteros [2022] HCA 27) rejected the conclusion that Google was a publisher in the circumstances of the case. The majority concluded that providing a mere hyperlink, which is not itself defamatory, which facilitated access to the content of another’s website is not part of the bilaterial act of ‘publication’. The position may be different in circumstances where the link is itself defamatory (see, e.g., Google Inc v Duffy [2017] SASCFC 130) or is sponsored ( Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435) or where there are other relevant circumstances. In the case of social media platforms, and in particular Facebook, in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the High Court considered third-party comments on certain Facebook pages. In the circumstances of that case, the appellants invited comment and the acts of facilitating, encouraging and thereby assisting the posting of comments of third- party Facebook users rendered them publishers of those comments. Defences to defamation Truth In Victoria, truth (technically, ‘justification’) has always been a complete defence to a defamation action. For this defence to succeed, the defendant