Defamation law obviously applies to internet publications, forums and intermediaries. The real issue is how does it apply. The decision of the Victorian Court of Appeal in Google Inc v Trkulja late last year provides some insight into the extent of the challenges posed by thinking through the application of defamation law to “the internet”, in all its complexity and variety.
The case involved an appeal against a decision refusing to set aside service of a defamation writ against Google. The trial judge was not satisfied that the claim had no real prospect of success.
For all its complexity, one matter emerged clearly from the Victorian Court of Appeal’s joint judgment: search engines do not have a special immunity and if they want one, it is a matter for the legislature, not the courts, to decide.
This seems like the proper course to adopt if such an immunity were to be created. This also seems unlikely to happen.
In most other respects, the Victorian Court of Appeal emphasise the need for nuance when dealing with the application of defamation law to the internet.
Indeed, towards the beginning of their judgment, their Honours point out that it is not especially helpful to talk about defamation law applying to “the internet”, given the diversity of internet platforms, intermediaries and publications.
They point out that how established principles of defamation law will apply to a particular internet publication or entity will depend upon exactly what the matter is and what the putative publisher did in relation to it.
It is not possible to generalize; each case will need to be determined according to its particular facts.
What emerges from Google v Trkulja is that the way a matter published over the internet is pleaded or particularized is important for determining the liability of the defendant.
So when suing a search engine, can the plaintiff rely on the snippets generated as a result of the search alone? Do the URLs of the webpages from which the snippets are generated need to be included or not? Can the search terms entered by third parties be relied upon as part of the matter complained of? What is the position of auto-complete suggestions for search engines? What if a plaintiff combines two or more of these elements? What effect will that have on a search engine’s liability for defamation?
Determining what exactly is the defamatory matter is vital. The issue may not always be straightforward.
What emerges even more clearly from Google v Trkulja is that the concept of publication requires further and more thorough consideration.
Although publication is the gist of the action in defamation – proof of publication completes the tort and is an essential element of the plaintiff’s case as to liability – it is usually readily established and uncontroversial.
Consequently, the basic principles of publication have not had the same level of critical attention as other areas of defamation law.
The difficulties presented by the varieties of “internet defamation” necessitate an engagement with the concept of publication in defamation law.
Liability for publication is ordinarily described as broad and strict. Whilst it is true that it is broad, it is not entirely true that it is strict.
In most cases, where the publisher engages in a positive act of dissemination of the defamatory matter, liability for publication is strict.
However, liability for publication can occur by omission, as the English Court of Appeal’s decision in Byrne v Deane  1 KB 818 demonstrates.
The Victorian Court of Appeal in Google v Trkulja considered Byrne v Deane and the line of authority applying its principles of publication to internet intermediaries.
Their Honours also considered the application of innocent dissemination to internet intermediaries.
In their view, the two lines of authority dealt with two distinct scenarios, the former applying where the defendant was being held liable as a primary publisher, the latter applying where the defendant was being held liable as a secondary publisher.
The Victorian Court of Appeal expressed the view that a search engine like Google, in the circumstances of the case, could only be held liable as a secondary publisher, in which case, it could rely upon a defence of innocent dissemination, and the line of authority derived from Byrne v Deane should have no application to its position.
The extent to which there are two distinct lines of authority, grounded in principle, should not be overstated.
The classification of publishers into primary and secondary publishers was not a fundamental feature of defamation law from the outset but was a comparatively late development, in the late nineteenth century when the plea of innocent dissemination was developed.
Innocent dissemination was devised as an avowedly policy-based doctrine to overcome the strictness of liability for publication.
It was initially conceived of as a plea of “no publication” but, during the twentieth century, transmuted into a freestanding defence. The principled distinction between these two lines of authority is not as stark as the Victorian Court of Appeal’s reasoning suggests.
What is significant, though, about the Victorian Court of Appeal’s reasoning is that it directs attention to the issue of publication and emphasises the need for liability for publication to be determined in the context of the particular case.
This attention to context was also relevant to the capacity of the matter to convey defamatory meaning. It was on this issue that the court ultimately determined the appeal.
It was here that how the matter was pleaded became highly relevant. The court found that the ordinary, reasonable reader could not reasonably find that Google as the search engine had conveyed the pleaded imputations.
As part of the relevant context, the court found that the ordinary, reasonable reader would bring to bear an understanding of what search engines do and the function they perform.
This attention to context in relation to defamatory capacity suggests that the focus of future arguments as to the liability of search engines for defamation may not solely be on the issue of publication.
The Victorian Court of Appeal in Google v Trkulja makes clear that how defamation law applies to internet intermediaries and publications can only be determined on a case-by-case basis.
This will take time to work out and will obviously continue to evolve, as internet technologies continue to develop.
Although they may promote short-term certainty, prescriptive solutions are likely to be futile.
The application of established principles of defamation law to the particular context in a given case will eventually yield a body of case law from which general principles may be derived, but this will take time.
*Dr David Rolph lectures in media law at the University of Sydney Law School. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008) and the co-author of two editions of Media Law: Cases, Materials and Commentaries. Australia (Oxford University Press, Australia 2010 & 2015). His fourth book is Defamation Law (Thomson Reuters, Australia 2015).
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.