The Law Handbook 2024

Chapter 7.5: The internet and the law 739 • were not the first or primary distributor; • were not the author/originator of the matter; and • did not have any capacity to exercise editorial control over the content before it was published. For more information about the uniform defamation Acts, see ‘What is defamation?’ in Chapter 11.2: Defamation and your rights. Case example: Search engine’s liability Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 In this case, the issue of a search engine’s liability was referred to, although Google did not rely on the defence of innocent dissemination. At first instance, Google argued that it did not ‘publish’ autocomplete predictions and that it should be held to be immune from the law suit as a matter of public interest. The High Court supported findings that Google did ‘publish’ the search results and that the range and extent of defences provided in division 2 of Part 4 of the Defamation Act 2005 (Vic) mitigate heavily against the developments of a common law search engine proprietor immunity. Case example: Liability for comments made on social media Fairfax Media Publications Pty Ltd; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2021] HCA 27 In this case, the High Court considered the liability of media organisations for comments made on social media pages that they controlled. The appellants were certain media organisations that maintained Facebook pages. The organisations disseminated news articles via the Facebook pages they controlled, and Facebook users were able to post comments on such articles. Certain Facebook users defamed the respondent in comments they made on Facebook pages that featured articles posted by the appellants. The majority of the High Court justices held that the appellants were responsible for the defamatory communications made by Facebook users, even though the appellants did not intend for such defamatory communications to be published, nor did they approve of the contents of the defamatory communications. The appellants were responsible for the defam­ atory communications, since they had facilitated the publication of the offending comments. By making various articles available on Facebook pages that they controlled, the media organisations effectively provided a platform for Facebook users to defame the respondent. Other protection issues Vilification and discrimination Material that vilifies or discriminates against a particular group of people may be prohibited under the Racial Discrimination Act 1975 (Cth) (‘ RD Act ’). The Australian Human Rights Commission ( AHRC ) assesses this type of content. Publishers of online content have been found to have acted unlawfully where the content they publish is racially vilifying or discriminatory. In Jones v Toben [2002] FCA 1150, the Federal Court upheld the AHRC’s decision that the respondent had engaged in unlawful conduct by publishing material that vilified Jews on a website. This decision has been applied in other cases, such as in Silberberg v The Builders Collective of Australia Inc (2007) 164 FCR 475; [2007] FCA 1512. At the heart of the Silberberg case were messages posted to an online discussion forum that contained material that racially discriminated against Jews. Although the court found that the person who posted the messages containing the offensive content did so in breach of the RD Act, the website host was found to have not breached that Act because the host’s failure to remove offensive content, despite having knowledge of it, was not necessarily connected to race. In Eatock v Bolt (No 2) [2011] FCA 1180, the Federal Court found that section 18C of the RD Act had been contravened by the publication of articles (print and online) that discussed the Aboriginal identity of identified individuals. The publication was assessed from the point of view and circumstances of the identified individuals, and not from that of the general community. The publications were found to contain inflammatory and provocative language; and the good faith exemptions for fair comment and genuine purpose in the public interest were not made out. In Victoria, the Racial and Religious Tolerance Act 2001 (Vic) (‘ RRT Act ’) specifically covers electronic