June 2017

Making defamatory statements online: easy to do, hard to control

Quite often, I’ve had clients come to me and say: ‘What can I do about an online statement that has been made about me that is damaging and possibly defamatory?’

To complicate the issue, the problem often arises in the context of an attack on the client’s business. Understandably, this may be of particular concern, because the statement could affect the goodwill of the business, as well as the reputation of any individuals identified.

Let’s take a look at some of the issues you need to be aware of when considering whether to pursue an action for defamation for a statement that has been made online.

What is defamation?

Defamation is a personal right of action that enables an aggrieved person to seek compensation for damage suffered to their reputation as a result of a publication about them. 

It applies to online and social media statements in the same way as to statements made by traditional forms of communication.

To succeed in a defamation claim, you need to show publication, identification and defamatory meaning. You also need to bring any claim within one year of publication.

Who has the defamation claim?

In general terms, whoever is identified by the relevant statements will have the right to bring a defamation claim.

You need to be aware that a company may not have a claim in defamation, as the legislation prohibits companies with more than 10 employees from pursuing such actions.

Even if a company has more than 10 employees, someone involved with the company might be able to bring a claim if they are identified with sufficient certainty from the statements made.

Who is funding the claim?

The question of funding a claim is important because we need to ensure that funding for legal fees associated with a claim won’t lead to allegations of misuse of funds. For example, you don’t want to find yourself accused of using business or trust funds for personal purposes.

Depending on how your affairs are arranged, there are a number of different options to consider for funding.

How do you prove publication of the defamatory statement?

To pursue a defamation claim, you must provide proof of publication of the defamatory statement.

This means you need to prove that the person you are accusing of making the defamatory statement participated in some way in the chain of communication of the offending material to third parties.

The person making the defamatory statement must have intended to convey the material, or must have been reckless as to whether their conduct would lead to that outcome.

What role does geography play in relation to the online publication of defamatory statements?

The law on where publication of an online defamatory statement takes place was settled in a High Court case in 2002.

Publication takes place where the offending material is downloaded onto a device and accessed, regardless of where in the world the offending material was uploaded to the website or other online platform.

This means that it is common, for example, for actions in defamation in NSW courts to be pursued against respondents that may be based outside of the jurisdiction or even overseas.

It is worth noting that these kinds of cases are quite common. That being said, be aware that there are issues of service on the foreign entity, and whether it will be possible to enforce a judgment that is made in your favour.

Can search engines such as Google be held liable for defamation?

In recent years, a number of Australian court cases have focused on the liability of online search engines, such as Google, for defamatory statements that appear as part of auto-generated search results.

This issue can arise in situations where, for example, search results returned on a search of your name or business include material that you consider to be defamatory in some way.

The various state courts are currently in the process of unifying their approach to these types of claims.

In general terms, however, a search engine organisation such as Google can be held liable in defamation where it is put on notice of the offending search results and it fails either to remove them or to prevent similar results from being returned on further searches. 

There have been cases in Australia where it has been held that Google intended to publish the material in its auto-search results, because that was what its algorithm was designed to do when the search request was typed into one of its search products.

It is possible that this could be sufficient to satisfy the test of publication for the purposes of the law of defamation, where the search result generated by Google is deemed to be defamatory because particular imputations are conveyed by the way the search result is put together, as well as by its content.

In these circumstances, you would argue that the search engine provider is a primary publisher of defamatory material, as well as a secondary publisher of a third party’s publication that in itself contains defamatory imputations.

How difficult is it to enforce judgments against US-based online companies such as Google?

It is notoriously difficult and costly to enforce judgments obtained against US-based online companies. For instance, a common position taken is that an Australian order will not be complied with unless it is authenticated in the relevant US court.

As a result, you may decide that it isn’t worth pursuing such companies in relation to search engine results.

In Australia, parties have attempted to argue that Google Australia is liable for defamatory statements by virtue of its participation in the business of Google Inc. conducted in Australia.

So far, these arguments have been unsuccessful.

A difficult and expensive process

As with many issues relating to online activity, there is relatively limited scope for seeking redress for potentially defamatory conduct.

The courts are often reluctant to order that potentially offending material be ‘taken down’ without considering all the issues. This means that you might need to pursue a court claim through to finality in order to seek redress.

In addition, if organisations such as Google Inc. are not prepared to remove content upon receipt of a request to do so, then, generally, the time and costs associated with forcing compliance with the request will deter most people from taking further action.

At this point, you may find yourself with just three choices:

  • Pursue costly and time-consuming litigation with uncertain prospects (while the offending material remains online and continues to cause damage).

  • Put up with the online content.

  • Seek to deal with it through commercial and public relations strategies.

If you are the victim of damaging online content, seek legal advice

The law surrounding the issue of online defamation is complicated and unclear in certain key areas.

As a result, if you or your business are the subject of potentially damaging online content, the most sensible course of action is to obtain legal advice that is particular to your own case.

Would you like to find out more?

At Bartier Perry, our commercial disputes team has extensive experience in dealing with defamation matters and digital technology, including social media. If you would like to discuss any issues associated with defamation, whether online or offline, please don’t hesitate to get in touch.

Author: Gavin Stuart