Who is liable for a defamatory publication?

1 Feb

Written By For Good Digital

The author is not the only person who can be liable for a defamatory publication. Anyone involved in its publication and distribution may also be liable. For example, this might include printers, editors, publishers, retailers and even librarians.
However, it is possible for some people involved in the chain of publication (e.g. retailers and librarians) to escape liability by proving that they were an ‘innocent’ or ‘subordinate’ distributor of the material. To prove this, they need to establish that they did not know the publication contained defamatory material, had no reason to suspect that it did, and that their lack of knowledge was not due to negligence. However, where a publication is ongoing (e.g. it’s published on the internet), once a distributor has been told that the publication contains defamatory material, then this defence may no longer be available to them, particularly if they have the capacity to remove or delete it.
From 11 September 2024, ‘digital intermediaries’ (defined in section 4 of the Defamation Act, such as search engines, social media platforms and administrators of social media pages) have a defence if they have an accessible complaints mechanism. This defence is discussed below.
It is important to know when publication occurred in order to know whether the changes to the Defamation Act on 11 September 2024 apply.
Changes to the Defamation Act on 11 September 2024 mean that search engine providers are not liable for defamation if their role was limited to generating automated search results or hyperlinks (Defamation Act s 10D). This exception will not apply if the search results are promoted or prioritised by the search engine because they are ‘sponsored’ or paid advertisements.
If publication occurred before 11 September 2024, then the common law will continue to apply. Internet search engines are generally not liable at common law for producing search results which include a hyperlink to a third-party website which has defamatory material on it, as the High Court found in Google LLC v Defteros (2022) 403 ALR 434. However, a search engine may be liable if it directs, entices or encourages the searcher to click on a defamatory hyperlink. At common law, a search engine provider may also be liable if it generates search results that place the plaintiff in a defamatory context. In Trkulja v Google LLC (2018) 263 CLR 149, the plaintiff alleged he had been defamed because Google searches for Melbourne underworld criminals returned images of the plaintiff alongside convicted criminals. The High Court left open the possibility that Google may be liable for intentionally participating in these search results but was not required to make a determinative finding.
Changes to the Defamation Act on 11 September 2024 mean that internet service providers and cloud storage services are not liable for defamation, so long as they did not play an active role in publication such as editing or promoting the defamatory material (Defamation Act s 10C).