Should defamation laws be updated in the digital age?

RICHARD BRADSHAW, SPECIAL COUNSEL, AND CAITLIN WALKINGTON, SENIOR LAWYER, JOHNSTON WITHERS

Intuition 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.

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’”. 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”.

WHO IS A PUBLISHER?

In the pre-digital age those participating knowingly in the creation and/or dissemination of written, graphic 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 shelter , 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."

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. 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) 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. However, where website hosts (such as in the case of Voller) 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.

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.”

The distinction is important, because secondary publishers of defamatory material may rely on the common law or statutory defence of innocent dissemination where they prove they “neither knew, nor ought reasonably to have known, that the matter was defamatory”.

Primary publishers are irrebuttably presumed to have such knowledge and to be responsible for the defamatory material they have published: the defence is not open to them.

The onus is on the secondary publisher to prove the defence and, where (and for as long as) the defence would otherwise apply (e.g. in the case of a search engine in respect of defamatory search results algorithmically generated) the secondary publisher will not be liable for any publication of such defamatory material until put on specific notice of it by the defamed person and given reasonable time to consider and remove it.

COMMON DISTINCT FEATURES OF ONLINE PUBLICATIONS

Before considering whether defamation laws need to be updated in light of this new environment, it is important to note

certain characteristics that distinguish publications in the digital age of social media and the Internet generally from those in more traditional forms.

In Brose v Baluskas & Others Judge Muir pointed to six propositions in considering “the more general and commonly known characteristics of social media”.

1. It is relatively unregulated. Most online platforms require users to accept standard terms of service on how the forum is to be used. However in practice these providers rarely want to get involved and intervene if there is a breach of their terms of service.

2. It has similarities to “pub chat” Online forums and social media are perfect platforms to allow people to make ill-informed, false or exaggerated allegations and air specific personal grievances in obnoxious manners. Eady J distinguished online discussions from more traditional, journalistic outlets by noting they resemble “contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’… People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contribution if they feel inclined, and think no more about it”.

3. It has the capacity to change the interpretation of the ordinary reasonable reader The ordinary reasonable reader will likely be aware of the potential for unreliability and false or exaggerated claims in social media posts. This may result in their not attaching too much credence to many such posts. This will lead to a more critical review of not just who the ordinary reasonable reader is in the specific circumstances but of what they may have understood from their experiences. Careful consideration of these cues is not unfamiliar to defamation: eg case law suggests that the placement of a publication in the editorial section or gossip column of a newspaper will identify to readers that it contains more assertions or opinion than facts. The difficulty in scrutinising publications in the digital age is not only identifying the ordinary reasonable reader but how that reader would interpret the reliability of that information, especially where the same information can appear on different forums.

4. It is difficult to identify the ordinary reasonable reader 19 Publications online can vary drastically in terms of scope of publication eg some online publications are capable of being viewed by a global audience, others by a relatively small community group dedicated to a particular topic. The test established by case law is: “the hypothetical reader is taken to be representative of those who would read the publication in question”.

5. It has unique features which impact the interpretation Online publications allow for the author to post a number of pictures, non-standard characters and emojis which affect the manner in which the publication is to be understood and interpreted.

6. It is multi-dimensional

This is perhaps the most challenging aspect of online publications.

Publications are very rarely read in isolation especially when the reader is interested and has information available at the touch of a button. The interpretation of one particular comment can be greatly affected by others, even ones posted later. This means that the meaning can change over time and makes the subtle task of assessing any defamatory imputation of a particular publication even more difficult.

WHAT CHANGES SHOULD BE MADE TO DEFAMATION LAWS?

The Defamation Working Party established by the Council of Attorneys- General is currently undertaking a review of the Model Defamation laws in Australia (including South Australia’s Defamation Act 2005) to identify areas for national reform.

It published the first set of recommended legislative changes late last year. These include replacing the existing defence of triviality (where the onus is on the defendant) with a “serious harm” threshold test for claimants to satisfy. This seems a reasonable change in current circumstances and should have the desired effect of reducing, if not eliminating, the many claims of (generally online) defamation (eg of limited circulation, of a domestic nature or between neighbours) which come before the Courts where the harm caused to reputation is quite minor.

Significantly the proposed test will be as to whether the defamation has actually caused serious harm (or is likely to do so) and, it seems, will operate at the time of instituting proceedings (or perhaps of the trial itself) rather than predictively at the time of publication, as with the triviality defence (“the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”).

Also of particular relevance to online publications is the recommended introduction of a “single publication rule” (more correctly, a first publication rule), where the one year limitation period for instituting proceedings for defamation will ordinarily be calculated from the date of first publication of the defamatory material (rather than, as at present, applying separately from the date of each discrete bilateral publication). Other recommendations include changes to certain existing defences (eg contextual truth, honest opinion, statutory qualified privilege) and the addition of the new defences of “reasonable communication in the public interest” and of “scientific or academic peer review”. These changes will apply to both traditional and online forms of publication, but may be expected to have relatively limited application to social media platforms.

It will however not be until the second stage that we will know of the Working Party’s recommendations as to possible changes in the responsibilities and liability of digital platforms for online defamatory content. There is already pressure from the traditional media following Voller, as well as from Google, Facebook and commercial interactive websites, to be excluded from responsibility for third party commentator posts. This pressure should be largely resisted. Otherwise persons with justifiably good reputations will have no effective remedy for the serious harm caused by posts made by persons of straw (and/or resident overseas) which, but for the global or widespread reach provided by these platforms (for their commercial advantage), would have very limited, if any, impact.

We take the view that it is premature for other changes to defamation laws to be made beyond those already recommended. As the six propositions advanced by Judge Muir in Brose indicate, the Courts are alive to the distinct characteristics of online publications and their implications for determining defamatory meaning.

We consider the Courts should be allowed for the time being to develop this aspect without legislative interference.