1. What is defamation?
The law of defamation protects the reputation of individuals and corporations by permitting the injured party to sue for damages. There is no specific legislation dealing with the issue of defamation on the internet. Each Australian State takes a slightly different legislative approach to defamation.
Generally the following elements must be present to establish defamation:
(a) defamatory matter (including the written or spoken word, or an image) must be published;
(b) defamatory matter must be published to a third person (ie. at least one person other than the complainant); and
(c) the complainant must be identified.
See the Defamation Fact Sheet in relation to who can prosecute and the defences against prosecution.
Defamation can be a civil offence and a criminal offence.
2. Defamation and the internet
To establish defamation, defamatory material must be published to at least one person other than the complainant. Material which has been uploaded, sent or posted on the internet is regarded as having been published when viewed by a person.
Republication is a recognised form of publication. Copying and distributing defamatory material may result in a defamation claim against the original writer of the material and the persons who copied and distributed it. Internet service providers (ISPs) and internet content hosts (ICHs) may be considered publishers of material carried or hosted by them. They may be potentially liable for defamation anywhere in the world that the material is accessed or republished.
3. Imputations can be defamatory
The courts look at the whole publication when determining whether or not material is defamatory. The material will be defamatory if it exposes someone to hatred, contempt or ridicule. It is not the words themselves which are defamatory but the meaning conveyed by those words. Such meanings (or imputations) do not have to be intended.
The internet allows users to choose the order in which they view information. Unintentional meanings drawn by a user may arise from the following:
(a) words on one website linked to another site; or
(b) words on one website linked to images on a different site.
Words or images which independently would be innocent can, when linked (as above), give rise to a defamatory meaning. The owner of one site may be responsible for the republication of defamatory material appearing on a linked site.
4. Who is liable?
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, the ICH and any other telecommunications infrastructure provider may be liable.
Employers can be liable for actions of employees done during the course of their employment. Employers may be liable for defamatory statements made by employees by email or for defamatory material posted on the Internet.
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 name, for example, joebloggs@company.com.
The identification of users on a network is an important step in protecting the network owner (which may be the business owner) against defamation actions. All employees should be readily identifiable either by use of a password, physical address, telephone number or other means. The failure to identify who made a defamatory posting or sent a defamatory email leaves the defamed party with little option but to sue the owner of the network.
5. ISP and ICH liability
While there is no clear authority, an ISP or ICH is likely to be treated as a mere distributor of material unless it can be demonstrated that the ISP or ICH knew or ought to have known of the defamatory material which has been uploaded using their service.
Generally subordinate distributors such as ISPS and ICHs will not be found liable if they did not know the publication was defamatory and this lack of knowledge was not due to any negligence on their part.
Reasonableness is a relevant factor in determining whether an ISP or ICH has been negligent in failing to monitor material posted on its bulletin boards. Given the large volume of material and the speed such material is posted to bulletin boards, ISPs could argue it is an unreasonable burden to monitor all such material.
Generally an ISP or ICH will be negligent if it becomes aware of defamatory material posted on its bulletin board (or newsgroup) and fails to remove such material within a reasonable time of notification.
6. Defence under broadcasting services legislation
ICHs and ISPs are potentially protected from liability for hosting or carrying defamatory material under broadcasting services legislation.(1) The defence only applies to internet content and expressly excludes ordinary electronic email and information that is transmitted in the form of a broadcasting service.
The defence is not available if the ICH or ISP is aware of the defamatory nature of the content which it hosts or carries. ICHs and ISPs are deprived of the defence in respect of publications of the offending web page or bulletin boards once put on notice of the fact they are hosting or carrying material which is defamatory.(2)
Internet services which provide radio or television programs at times chosen by the program provider would satisfy the definition of broadcasting service and be unable to rely on the defence. 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 be available.
7. General defences
(a) Truth of the imputation;
(b) a requirement to divulge and to know communications (for example, character references or reports to authorities);
(c) political debate and discussion;
(d) fair comment; and
(e) consent.
Defamation with malice will defeat all defences other than truth of the defamatory material.
8. 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 the dissemination of defamatory material on the internet. A public apology or retraction is sometimes sought and granted in defamation actions.
9. Managing liability on your website
(a) By inserting a hyperlink on your website you could become liable for republishing any defamatory statements that appear on the linked page. You should include disclaimers in the terms and conditions of website use to limit your liability for linked sites. The disclaimer should clearly identify that the user is entering a third-party web site and you are not responsible for and cannot control content on that third-party web site.
(b) The level of protection you need to limit your liability for defamation will depend upon your risk profile and the risk profile of the sites you link to. One option is to vet or check any other sites that you link to. This may be extremely time consuming and difficult.
An alternative is to enter into indemnity agreements with the owners of websites that link to your website. If a third party wishes you to place a link to your site they should indemnify you against any loss you suffer as a result of defamatory actions on linked sites.
(c) You should understand and consider the defamation laws in each jurisdiction your website is accessible from. Given the Internet is borderless, you can potentially be liable for defamation anywhere that a web site can be accessed.
Defamation laws differ between state, territory and country. It is quite possible to have a defence for defamation in the US but be liable in the UK or Australia. You should consider implementing conditions and procedures to limit the accessibility of the site to those jurisdictions that you intend to deal with.
A website accessible and used by end users in a number of states or countries will attract a higher risk than a website limited to a single state like New South Wales.
(d) Your website development agreement with the developer should include indemnities from the developer that website material is not defamatory. See Website Development Agreement.
(e) Audit material on your website periodically to ensure it is not defamatory.
(f) Ensure that complaints about questionable content on your website are referred to an appropriate person. At minimum any material which is questionable or controversial should be checked to ensure that it is true and in the public interest. While truth is not an absolute defence the material must be true and in the public interest to constitute a defence against defamation.
10. Defamation issues on websites with user upload capabilities
Where users are permitted to upload files or content to your website, you can reduce the associated legal risk of defamation as follows:
(a) Specify in the terms and conditions of website use:
* you are authorised to remove uploaded files, content or works without permission;
* you are not responsible for determining content uploaded to the website;
* people posting material to the site indemnify you for any loss arising from any defamation prosecution; and
* non-liability to readers for any defamatory material.
(b) Implement procedures to remove infringing material upon notification and consider implementing an audit policy to review and remove infringing material.
See Terms and Conditions of Website Use.
Other relevant Articles on this site:
Other ISP liability
Terms and conditions of website
Other relevant Fact Sheets:
Defamation
Workplace Net Control
End Notes
(1) Broadcasting Services Act 1992 (Cth) Schedule 5, clause 91:
A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a) 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
(b) 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
(c) subjects, or would have the effect (whether direct or 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
(d) requires, or would have the effect (whether direct or indirect) of requiring an internet service provider to monitor, make inquiries about, or keep records of, internet content carried by the provider.
(2) M Collins ’Communications: New twist to liability for defamation on the internet’ (2000) 38 (6) LSJ 71.