What is defamation?
‘Defamation’ means to damage another person’s reputation by publishing or communicating false statements about them.
A publication does not need to be ‘public’ to be defamatory. An email sent to a restricted group of people (or even sent to a single person) can be defamatory as much as a social media post that is publicly available. An example of a defamatory email can be found in the case of Raynor v Murray  NSWDC 189.
The same laws apply online
In Dow Jones & Co Inc v Gutnick  HCA 56, the High Court confirmed that the same laws govern defamation on the internet as govern defamation in other types of publications. In this case, the court also ruled that ‘publication’ (one of the elements of defamation) occurs when material is downloaded, read and comprehended by a reader. This case has been confirmed in subsequent decisions.
Unintentional imputations (the meaning conveyed by the material) may arise from words or images on a website that are linked to words or images on a different site, or a different part of the same site. Words or images might be independently innocent, but when linked may give rise to a defamatory meaning. In certain cases, the publisher of one site may be responsible for the replication of defamatory material appearing on a linked site. Also, the risk of defamation can increase when an article is summarised and published as a tweet or post to a social media website. This is because when a shortened version is published, the context (and thereby the defences to the defamatory content) can be lost.
Case example: defamatory imputations
|Hockey v Fairfax Media Publications Pty Ltd  FCA 652
The former Federal Treasurer, Joe Hockey, sued Fairfax Media Publications alleging defamation, in relation to articles that appeared in the Sydney Morning Herald, The Age and The Canberra Times newspapers. Each of those newspapers also published online versions of the articles on various online platforms with similar content to the substantive part of the printed articles.
From an internet law perspective, the interesting part of this case was that, aside from the printed and online versions of the articles, Mr Hockey also sued for defamation for some tweets published by The Age as separate publications. One tweet comprised only the words ‘Treasurer Hockey for Sale’ and was followed by a hyperlink to the story on The Age website. A second tweet contained a ‘summary’ comprising the following words: ‘Treasurer for Sale: Joe Hockey offers privileged access. Treasurer Joe Hockey is granting privileged access to a select group of business leaders in return for political donations totalling hundreds of thousands of dollars each year.’ The text appeared alongside a photo of Mr Hockey and a hyperlink to the story on The Age website. The third tweet was the same but also included the article, rather than a summary.
The Federal Court found that the articles were not defamatory because when read as a whole, any defamatory imputation that may have arisen by the headline was dispelled.
However, the first two tweets (and a poster or placard used to advertise the newspapers) were found to convey defamatory imputations. Namely that he corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia; and he is corrupt in that he was prepared to accept payments to influence his decisions as Treasurer of the Commonwealth of Australia. The court found that the third tweet, which contained the entire article, was not defamatory because any understanding that the Treasurer was engaging in corrupt conduct was dispelled.
The case establishes the risk in publishing via Twitter a short comment that does not have the advantage of providing the necessary context to ‘cure’ potentially defamatory remarks.
Liability of internet content hosts and service providers
Uniform defamation Acts that came into effect in January 2006 include a defence of ‘innocent dissemination’ for subordinate distributors. This means that defamation actions can be defended, provided the ICH and ISP:
- 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.
However, the recent High Court case of Fairfax Media Publications Pty Ltd v Voller  HCA 27 has made operators of Facebook pages liable for defamatory content contained in comments responding to posts published on the Facebook page.
Case example: A search engine’s liability
|Trkulja v Google LLC  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.