Aside from the person who posts on-line comments, is anyone else liable for defamatory comments posted on the web?

Comments posted on-line could be unlawful for a number of reasons, they could:

  • affect a person’s reputation and therefore be defamatory;
  • affect a business and therefore be an “injurious falsehood”;
  • be unlawful in some other way, e.g. discriminatory or offensive.

If defamatory material has been posted on-line, who is liable? Is it just the person who posted it, i.e. the author, is it the person or entity responsible for the website or blog, i.e. the internet content host, or could it include the internet service provider, e.g. Optus?

Generally, the website host would not be liable for defamation or other claims, but that area of law is not clear and it would depend upon the manner in which the website host managed the content.

Defamation

As of 1 January 2006, there is a uniform defamation law throughout Australia.  A person (or a corporation that employs fewer than 10 people or is not-for-profit) can sue for defamation if one of the following tests can be satisfied:

  1. the statement is likely to injure the reputation of the person by exposing them to ridicule, contempt or hatred; or
  2. the statement is likely to make people shun or avoid them; or
  3. the statement has the tendency to lower the person’s reputation in the estimation of others.

Comments or entries posted to a website that satisfies one of the above three tests and are published to a third party will give rise to an action for defamation throughout Australia.

Relevant Court decisions

In Australia, there is yet to be a decided case involving the liability of internet intermediaries, such as website or internet content hosts, for authorising the publication of defamatory comments. To date, there has only been one case that touches upon this area of law.

Kaplan v Go Daddy Group was an action for the tort of injurious falsehood. The defendant created a website (www.hunterholdensucks.com.au) and a disparaging blog about the plaintiff that encouraged other users to post derogatory comments about the plaintiff’s business. Comments were posted to the blog, all of which contained defamatory comments about the plaintiff’s business. The plaintiff applied to the Court for an injunction to prevent the defendant from maintaining the defamatory blog.

The Court granted the injunction saying that there was a serious question to be tried as the defendant had committed and threatened to commit the tort of injurious falsehood by posting the defamatory comments about the plaintiff in his blog. The matter did not proceed any further after the initial injunction application, so there was no further consideration as to the liability of the website host for defamatory comments posted on the blog.

Defences to Defamation

So without further Court decisions, it can only be said that a website host might be at risk for “publishing” defamatory material on the internet. Given the risk, it is helpful to consider the relevant defences available under Defamation law.

As the website host would be responsible as a “publisher”, rather than an “author” of defamatory comments, its defences would be limited to two: innocent dissemination and opinion.

Defence of Innocent Dissemination

An internet content host might have the defence of innocent dissemination, if it can prove that:  

  1.  it published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
  2. it neither knew, nor ought reasonably to have known, that the matter was defamatory; and
  3. its lack of knowledge was not due to any negligence on its part.

A person is a subordinate distributor of defamatory matter if the person:

  1. was not the first or primary distributor of the matter; and
  2. was not the author or originator of the matter; and
  3. did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

There has been some academic discussion about this issue and it has been suggested that an internet content host (ICH) or an internet service provider (ISP) will not be considered to be the ‘first or primary distributor’ merely because it was the provider of the service that allowed the matter to be made available electronically, or because it was the operator of a communications system that allowed the matter to be made available by a third person over whom the ISP or ICH had no effective control.

The crux of the defence will be whether the ICH had “any capacity to exercise editorial control” over the content before it was published. In this regard, there are some issues to consider:

  • What exactly is “editorial control”?
  • Does it mean the active poring over material to edit, proofread, and consider it?
  • Or does it just mean that the ICH has an ability to remove offending content?
  • Does an ICH that considers whether to set up its affairs so that it can exercise control, but then decline to do so and adopt another model, have the capacity to exercise editorial control?

Currently there is little guidance on how those questions would be answered by a Court.  If a website merely acts as a portal that allows people to post comments without more, then it is likely to be a passive provider of internet content and therefore able to rely upon this defence. However, if the website is active and its comments are monitored and subject to some editorial control before posting, then the website may not be able to invoke this defence.

In short, the more active the website and the greater its capacity to exercise editorial control, the less likely the website will be able to successfully rely upon this defence.

Defence of Opinion

For on-line content, another likely defence to a defamation action may be that of opinion, providing the internet content host can prove that:

  1. the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
  2. the opinion related to a matter of public interest; and
  3. the opinion was based on proper material.

The defence will only fail if there were reasonable grounds to believe that the opinion was not honestly held by the person at the time the material was published. For the purposes of that requirement, an opinion is based on proper material if it is based on material that is substantially true.

So, for example, a website that allows users to search about other people’s experiences with a particular person or business is a matter of public interest.  As long as the website host had appropriate terms and conditions on the website and they required users to confirm (before posting) that the comment was an expression of opinion, rather than a statement of fact, and it was based on their personal experience with the subject, then the website host should not have any grounds (let alone reasonable grounds) to believe that the opinion was not honestly held.

Other Breaches

Whilst defamation is an obvious risk, there are other risks of potential unlawful content on the website attracting liability.  For example, it is possible that someone could post malicious content about a person’s business that could expose that person to the tort of injurious falsehood. Another risk is that the content might be discriminatory or unlawful for breaching some other law.

However, a website provider (not author of the comments), could not be held liable as the comments were not made by them.  Although there might be some risk if, after being alerted to the comments, the website host kept the comments posted on-line.  In this regard, the website host could rely upon the protection offered by an obscure provision in the Broadcasting Services Act.

Broadcasting Services Act 1992 (Cth)

In Australia, there is an obscure provision that protects internet content hosts and internet service providers from liability for hosting internet content, where they were not aware of the content.

The law suggests that where an internet content host has been notified it is hosting defamatory or unlawful content and fails to remove the content within a reasonable period of time, it could be liable for publication, if the material is found to be defamatory or unlawful.

If, after receiving a notice from the Australian Broadcasting Authority (ABA) to take down the offending content the ICH refuses to do so, then it might be liable if the material is found to be defamatory or unlawful. An individual who is the victim of a defamatory or unlawful posting will also be able to remove the legislative protection by putting the ISP or ICH on notice of a posting that is defamatory of unlawful.

It appears that this section has not been subject of any litigation, so it remains to be seen whether a website host of a site could rely on this provision as a shield to a potential defamation action.

Location of Website

Finally, it does not matter where you set-up your website.  In a unanimous decision in the 2002 case of Dow Jones & Company Inc v Joseph Gutnick, the High Court of Australia held that an article was published (amongst other places) in Victoria where it was available for viewing on the internet, even though the defendant’s website originated in New Jersey in the United States.  After the High Court ruled that Gutnick could proceed with his action against Dow Jones, the case settled for a rumoured payout of $600,000.

So the current law on this point is clear: regardless of any protection offered by a less restricted jurisdiction (such as the United States with constitutionally protected freedom of speech), if the material can be viewed in Australia then the material will be deemed to be published in Australia and therefore actionable in Australia.

 Watch Out!

If you post comments on a website hosted outside Australia, you could still be liable for defamation action in Australia if the content can be viewed in Australia.

If you host a website anywhere in the world, you could be liable for content posted on your site by a third party and could be sued in Australia.

Joe Kafrouni, Legal Practitioner Director, Kafrouni Lawyers

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