Updated as at 17/10/2001.
1. Introduction
The law of defamation protects the reputation of individuals and organisations by granting the injured party the right to sue for damages. There is no specific legislation dealing with the issue of defamation on the internet. Moreover, each Australian state takes a slightly different legislative approach to defamation.(1)
In general terms the following must be present to establish defamation:
1. a defamatory statement (or material) or imputation;
2. the statement (or material) identifies the plaintiff; and
3. the statement (or material) is published to a third person, ie at least one person other than the plaintiff.
2. Publication
Defamatory statements or material must be published to at least one person. Once a person views material which has been uploaded, sent or posted on the internet, that material is regarded as having been published. Though where a person views that material may determine where publication takes place, which is of significance in determining the relevant jurisdiction.(2) (See the Jurisdiction Fact Sheet)
Republication is also a recognised form of publication. Accordingly, taking defamatory material, copying and distributing it may result in a defamation claim against the original writer of the material as well as the persons who copied and distributed it.
As internet service providers (ISPs) and internet content hosts may be considered "publishers" of material carried or hosted by them, even though they may have little if any control over where material is published, they are potentially liable for defamation anywhere in the world where the material is accessed or republished.
The courts may distinguish between a publisher and a mere distributor. For example, a newsagent may not be held liable for selling papers that contain defamatory material if they were not aware of the material contained.
3. Defamatory meaning and imputations
The courts look at the whole publication when determining whether or not material is defamatory. Thus, the words upon which the plaintiff relies must be looked at in their context. The material will be defamatory if it exposes someone to hatred, contempt or ridicule. One judge described a defamatory statement as a statement that is "of a kind likely to lead ordinary decent folk to think less of the person about whom it is made."(3) It is not the words that have been used themselves which are said to be defamatory but the meaning that is conveyed by those words. These meanings are known as imputations. To be liable for defamation, those meanings or imputations need not be intentional.
The internet allows users to choose the order in which they view information and so meanings or imputations that were not intended may be drawn by a user. The following are examples:
* words on one website linked to another site; or
* words on one website linked to images on a different site.
Independently, words or images can be innocent but when linked may give rise to defamatory meaning. It might be argued that using a link or website makes the owner of one site responsible for the republication of defamatory material appearing on a linked site.
4. Who can sue?
To pursue a claim for defamation, the material must sufficiently identify the plaintiff. A reference to someone as part of a group is sufficient for a claim in defamation provided that the group is a small one. For example, to say that all New South Wales Fraud Squad members are corrupt identifies each of those people whilst to say that all Australians are corrupt does not. A corporation can be defamed by material which harms its trading reputation.
5. Who gets sued?
Any person who participates in the publication of the defamatory material can be held liable. With publishing on the internet, the author of the material, the ISP and hosts of internet content, and any other infrastructure providers may thus be liable.
It may not be easy to identify the source of defamatory material published on the internet. Internet users do not have to register their true identity and it may even be difficult to prove where a person’s registered source computer is located. Alternatively, it may be difficult to link that computer with an individual especially where the computer is made available to the general public at, for example, an internet café.
When an email address is visible on a defamatory message, the person who is defamed is likely to sue the owner of the domain name. This could be the employer if the email contains the company’s name, for example, joebloggs@company.com.
ISPs have also been sued when courts have considered them to be publishers (as opposed to mere carriers or distributors) of defamatory material. Whilst there is no clear authority, it would seem that an ISP without more would be treated as a mere distributor of material unless it can be demonstrated that the ISP knew or ought to have known of the defamatory material which has been uploaded using their service.
6. Defences
A number of defences to defamation exist. These include:
* justification/truth of the imputation: the imputation is true or substantially true. In some Australian states the true or substantially true imputation must also be a matter of public interest or published for public benefit;
* absolute privilege: if material was said in court or Parliament. This defence is not available if the same statement was made outside of court or Parliament.
* qualified privilege (fair and accurate reporting of court and parliament allowed): this permits the media to publish a report of statements made in court or in parliament provided the statements made in court or in Parliament are fairly and accurately reported;
* requirement to divulge and to know communications (for example, character references or reports to authorities);
* certain publications are given statutory protection (i.e. an Act permits the publication to be made and the publisher not to be liable, eg reports to authorities);
* political debate and discussion: the reasonable publication of matters of political and governmental debate and discussion;
* fair comment; and
* consent.
Defamation with malice will defeat all defences other than truth of the defamatory material.
7. Defence of innocent dissemination
Cases have confirmed that the traditional tests are applicable to the publication of defamatory material on the internet and so ISP's may be able to rely on the defence of innocent dissemination.(4)
In general terms, "subordinate distributors" will not be found liable if they can show they did not know the publication was defamatory and that this lack of knowledge was not due to any negligence on their part. Reasonableness is a relevant factor in determining whether an ISP has been negligent in failing, for example, to monitor material posted on its bulletin boards. Given the large volume of material on bulletin boards and the speed with which such material is posted, ISP's may argue it is an unreasonable burden to monitor all such material.
The issue of what is reasonable in determining negligence becomes more straightforward once an ISP becomes aware of defamatory material posted on its bulletin boards and fails to remove such material within a reasonable time. Once an ISP becomes aware of defamatory material, it is more likely to be held liable if the ISP fails to remove it.
8. Defence in the Broadcasting Services Act 1992 (Cth)(5)
Recent amendments to legislation in Australia provide internet content hosts(6) and ISPs(7) with some measure of protection from liability for hosting or carrying defamatory material.(8) This legislation appears to override civil liabilities arising under legislation as well as under rules of common law and equity.(9) The defence, however, only applies to "internet content" and expressly excludes "ordinary electronic email" and "information that is transmitted in the form of a broadcasting service".
Internet services which provide radio or television programs at times chosen by the program provider would satisfy the definition of "broadcasting service" and would therefore be unable to rely on the defence. However, where a radio or television program is able to be heard or viewed by an internet user at a time of their own choosing the defence would apply.
The defence is not available if the internet content host or the ISP is aware of the defamatory nature of the content which it hosts or carries. Persons defamed in web pages or on bulletin boards could therefore potentially deprive internet content hosts and ISP's of the benefit of the defence in respect of future publications of the offending web page or bulletin boards by putting them on notice of the fact that they are hosting or carrying material which is defamatory.(10)
9. Remedies
The main purpose of a defamation action is to compensate a person for harm to his or her reputation.
A defamed person may also seek an injunction to prevent dissemination of defamatory material on the internet. For example, an injunction granted in one jurisdiction against a person who lives in that jurisdiction effectively operates as an injunction on publication (on the internet at least) throughout the world. However, recent case law demonstrates the reluctance of Australian courts in practice to issue injunctions that would have the effect of restraining publication on the internet beyond the court's intended jurisdiction.(11)
A public apology or retraction is sometimes sought and granted in defamation actions.
Other relevant Fact Sheets:
Sources of Law
Broadcasting Services Act 1992 (Cth)
Broadcasting Services Amendment (Online Services) Act 1999 (Cth)
End Notes
1. This fact sheet only deals with publications directed at an Australian audience. The defamation laws of foreign countries can be very different from those in Australia. For example, in the United States the Free Speech rules in the US Constitution can have a dramatic impact on defamation suits. This should be noted by anyone directing their publishing to a foreign audience.
2. Justice Hedigan, in Gutnick v Dow Jones [2001] VSC 305 stated that "publication takes place where and when the contents of the publication, oral or spoken, are seen and heard, (i.e. made manifest to) and comprehended by the reader or hearer." However it is important to note that this decision is subject to appeal.
3. Chief Justice Jordan of the NSW Supreme Court in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88.
4. Brennan CJ in Thompson V Australian Capital Television (1996) 141 ALR 1 at 10-11 stated that "there is no reason in principle why a mere distributor of electronic material should not be able to rely upon the defence of innocent dissemination if the circumstances so permit."
5. As set out in the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) which commenced operation on 16 July 1999.
6. The definition of "internet content host" in Clause 3, Schedule 5 is confined to persons who host or who propose to host internet content in Australia.
7. The definition of "internet service provider" in Clause 3, Schedule 5 is limited to ISPs that carry communications between two or more points, at least one of which is in Australia. In effect, this would include ISPs located outside Australia if the communication originated from or is transmitted to somewhere within Australia.
8. Clause 91(1) of Schedule 5 states: "A law of a State or Territory, or a rule of common law or equity, as no effect to the extent to which it: subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or subjects, or would have the effect (whether direct of indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular internet content in a case where the service provider was not aware of the nature of the internet content; or requires, or would have the effect (whether direct or indirect) or requiring an internet service provider to monitor, make inquiries about, or keep records of, internet content carried by the provider."
9. Defamation is a common law action in the ACT, South Australia, Victoria and Western Australia and arises out of legislation in New South Wales, Northern Territory, Queensland and Tasmania.
10. M Collins ‘Communications: New twist to liability for defamation on the internet’ (2000) 38 (6) LSJ 71
11. For example, Justice Simpson in Macquarie Bank Ltd v Berg [1999] NSWSC 526 stated at 12-15 that if Her Honour "were to make the order sought [ie. an injunction] and the defendant were to obey it, he would be restrained from publishing anywhere in the world via the medium of the internet…It may well be that, according to the law of the Bahamas, Tazhakistan, or Mongolia, the defendant has an unfettered right to published the material. To make an order interfering such a right would exceed the proper limits of the use of the injunctive power of this court."