When, in 1932, a Full Court of the Victorian Supreme Court considered, for the first time, how the rules of defamation law might apply to that new-fangled technology, the radio, one of the judges bemoaned that:
“Very recent developments in physical science could not possibly have been foreseen when the Common Law Courts were working out the essentials of the respective causes of action for libel and slander.”
Australian courts have never since managed to get ahead of the technological curve when it comes to applying defamation law principles to new media of communication, a problem that has become acute since the advent of the internet.
The achingly slow evolution of the common law, dictated always by the facts of the unrepresentative cases that happen to require adjudication, leaves judges with little by way of guidance other than inapt analogies.
This country’s landmark contribution to the international jurisprudence, almost a generation ago now, in Dow Jones & Co Inc v Gutnick, was dismissed by a technologically savvy English judge in 2005 as having treated communications via the internet as if they were “seaside postcards sent by conventional means”.
The lack of agility of the common law is not confined to Australia. The New Zealand Court of Appeal recently spilled litres of ink analysing whether defamatory comments posted on a Facebook profile were best compared with poems tacked onto a golf club notice board, graffiti on a wall, or statements shouted out at a public meeting.
Developments in the United States, and in England and Wales, have left the antipodes for dead.
The American Congress passed legislation in 1996 giving effect to a policy that only those responsible for authoring, editing or commissioning defamatory statements should be exposed to liability.
All others have a complete immunity from suit, including internet service providers, web hosts, moderators, the operators of online forums, search engine operators, and those who link to or re-post material created by others.
Defamation judgments from Australian courts are unenforceable in almost all circumstances in the United States.
Similar policy settings have been adopted in England and Wales, as a result of common law developments, as well as a raft of recent internet-friendly legislative reforms.
Defamation actions can no longer be brought against secondary publishers of defamatory statements (such as internet service providers and content hosts in respect of statements posted by others) unless a court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or commercial publisher of the statement.
Nor can defamation actions be brought in England and Wales against persons who are domiciled outside the United Kingdom, the European Union, Iceland, Norway or Switzerland, unless a court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the action.
Operators of websites have a complete defence to an action for defamation in respect of statements posted on their websites by others, unless (in substance) the claimant shows that it has not been possible to identify the person who posted the statement and the operator of the website has failed to comply with a prescribed notice and take-down procedure.
A single publication rule has been introduced, which removes the spectre of indefinite exposure to liability in most cases for defamatory statements that remain online years after they were first posted.
Courts have the power to direct operators of websites to remove statements that have been found to be actionable in a case against the author, editor or commercial publisher, without the need for the operator to be sued or joined.
It is, of course, open to argue that different policy settings are appropriate, and that internet service providers, content hosts, operators of websites to which others post content and search engine operators – all of whom will often have deep pockets – ought not to be immune or substantially immune from liability in respect of defamatory statements that would not be accessible but for the services they provide or the media they manage.
In Australia, however, no substantial attention has been turned by any legislature to any of these questions.
We are wholly out of kilter with developments in the jurisdictions with which we are most often compared.
The common law has proved an inadequate vehicle for reform, with Australian courts recently affirming, for example, by the application of centuries-old principles, that search engine operators can be treated as the publishers of defamatory statements that are located anywhere on the internet, simply because they have been automatically indexed, even though they played no part in writing, editing or commissioning them.
In Victoria, it has been held that that liability can attach even where the search engine operator is not on notice of the offending statement.
Online publishers can be liable under Australian law for defamatory statements lurking in their archives years or decades after they were first posted, simply because they remain accessible.
There is no encouragement, or even incentive, for plaintiffs to pursue the authors of defamatory online statements, rather than those who have merely facilitated their availability.
Australia’s parochial approach towards jurisdiction means that defendants with little or no connection with this country can be hauled to account before its courts.
All of these matters are, in my view, crying out for legislative correction.
*Dr Matt Collins QC is a member of the Victorian Bar and a Senior Fellow of the Melbourne Law School. He is the author of three editions of The Law of Defamation and the Internet (2001, 2005 and 2010) and of Collins on Defamation (2014).
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.
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