MEDIA & THE LAW
Should defamation laws be updated in the digital age? RICHARD BRADSHAW, SPECIAL COUNSEL, AND CAITLIN WALKINGTON, SENIOR LAWYER, JOHNSTON WITHERS
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ntuition 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 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. 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. In more recent times, Judge Gibson in Rothe v Scott 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’”.2 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”.3
WHO IS A PUBLISHER? In the pre-digital age those participating knowingly in the creation and/or dissemination of written, graphic
16 THE BULLETIN June 2020
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. Those not engaged in a publishing enterprise or process, for example the owner of a bus shelter4, 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. As the High Court plurality in Gutnick 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.5 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 publisher or a secondary publisher. 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.6 Further, each such downloading to a third party comprises a discrete potentially actionable defamatory publication. Where an electronic communication (eg email or the posting of material on a website or webpage) is downloaded by a third party in comprehensible form, its author/sender is (unremarkably) a primary publisher of that communication.
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)7 the service provided is merely the facilitation of direct electronic communication between sender and one or more recipients to whom that communication is directed, without having the capacity to exercise control over content (in a similar way to that in which a telecommunications company facilitates telephonic communication), the provider of that service is not a publisher. On the other hand, where the provider hosts (or owns) a website on which third party commentators are invited to post blogs or comments and has the capacity (whether before or after such posting online) to exercise editorial control over content, eg 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. 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.8 However, where website hosts (such as in the case of Voller9) 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. 10 Indeed, on 1 June 2020, the NSW Court of Appeal handed down a judgment dismissing the media organisations’ appeal in Voller, holding that they had “accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments... It was [they] who provided the vehicle for publication to those who availed themselves of it.”
