Level Of Responsibility Of Online Intermediaries In Defamation Content: Australian And International Perspectives

What level of responsibility do online intermediaries bear for defamatory content which passes through or is hosted on their network? What level of responsibility should they bear?Consider the position in Australia and at least two other jurisdictions.

Civil and criminal defamation
What is a defamatory publication?
Who can sue?
Who is able to be sued and liable?
What defences are available? (incl. defences available to Internet Service Providers/Content Hosts)
Which jurisdiction's law applies?

Civil and criminal defamation

Defamation laws have established over several periods to render resort for individuals whose status is damaged by data publication about them. In theory, the objects of defamation laws is to balance security of personal image with liberty of communication. In exercise, defamation laws are often used as resources of distressing communication. The threat of defamation reports and harms, whether or not claims of accuser are likely to be sustained by the courts, is frequently used to silence disapproval not only by specific people or groups but also as risk to other people.

Similar to all other law to date, the defamation is well-defined in the jurisdiction that is based on environmental parts. Defamation is the creating of a false statement regarding the individuals or business that indemnities image of those people and their business. In case of creation of false statement is made and image of those people and their professions is spoiled, then the legal significances may occurred for the people who created false statement. The defamation is applicable to written statements and as well as oral statements that are published to other party. Publication involves the placing of materials on internet. Defamation may be verbal statement or written statement. In case of verbal defamatory statement, it is considered as slur. And in case of written defamatory statement, it is called as defame.   

In the following parts, the level of responsibility of intermediaries, and defamation law and internet in Australia is discussed and critically examined.

Provided the extensiveness of the sense and importance of publication in defamation law, the internet mediators like service providers of internet, website hosts, search devices and organisations related to social media can be responsible for offensive contents placed by other party. In present time, the court has started to state internet intermediate responsibility in defamation. In examining laws and how it becomes applicable in various common law jurisdictions, minimum two issues develop. Firstly, the principle results in offenders being found to be editors where people would not think their behave properly responsible to ground responsibility. Secondly, the law is difficult and unclear. Courts sometimes conflate various lines of principle such as in relation to secondary publication and publication by error. The result is evolving case law that is sometimes immoral and not suitable to handling problem of internet intermediary responsibility in defamation.

The five liability models have established to state the liabilities of internet intermediaries. These five liability models are strict liability, broad immunity, safe harbour, generalist, and notice-and-notice. Though most of these models will be discovered in additional details below regarding particular jurisdictional strategies, they are tested to recognise broad structure at work and the tension between them.

What is a defamatory publication?

The strict liability model needs viewing of contents by mediators, worsening which they face legal concerns like criminal punishments, extraction of business licence. The safe harbour model gives mediators with undefined resistance from responsibility. It is good to considered as the NTD wherein an intermediary is given a safe harbour from responsibility as long as it eliminates contents or restricts access to contents, which are at top position of illegal materials to be taken down. The electric commerce directive renders broad resistance for channels and to the reduced scope mediators that supply contents, but needs host to restrict access to contents on real experience or consciousness that it is not legal. It is recognised as the parallel strategy. The reason is that it is applicable to various causes of acts, which is contrasted with the American straight down strategy where NTD is only essential in matter of copyright infringement according to DMCA. Normally, as the circumstance of safe harbour, mediators are motivated to state illegal contents by the service with CSR, practical solution or same code of practice and memorandum of knowledge.

The broad immunity model provides what the title suggests – broad immunity to intermediaries for the content that is available through their services. This is most evident in the USA under section 230 of the Communications Decency Act (CDA), which provides immunity to providers of interactive communication services for most unlawful content. The only exception is federal criminal, communications privacy and intellectual property matters. The fourth model is notice-and-notice, implemented by Canada in Copyright Act, where the intermediary is required to forward electronically a notice of copyright infringement to the user linked with the IP address mentioned in the notice.

The generalist model is fifth model. It is used in various nations for intermediate responsibility in defamation. With the general model, there is no specific intermediate responsibility rule. The related problem for these five models is whether an intermediary has duty to review its service. As per the strict liability model, intermediate is required to review its service, while under wider resistance model it is not. The safe harbour model does not clear that whether observing is needed. More important thing to notice that ECD renders that there is no duty to review. It thus blunders more in the way of the wider resistance model than the strictly accountability model.

While talking about the defamation law, it is shaped to secure the image of person, while still keeping the rights to free speech. In South Australia, it is regulated by the common law and the Defamation Act. Formerly, defamation was divided into two types – libel and slander. Later, it is known as defamation. In Victoria, Queensland, Western Australia and New South Wales, it is governed by Defamation Act, 2005.

Who can sue?

There are two relevant laws like 2006 Amendments to Australian Defamation Laws and Australian Defamation Laws pre 2006. In May 2005, it was proclaimed that state governments had lastly got contract on passing identical defamation laws, and planned to do so by January 2006, and that Central Solicitor Common Philip Ruddock had expressed the state he would no longer assert on modifications to the model code. On 25 October 2005, the Queensland Attorney General Linda Lavarch proclaimed that Defamation Bill 2005 to amend defamation laws of Queensland, according to anticipated identical national law, had been announced in Parliament and was predictable to come into effect from 1 January 2006.

In Australia, there is no legislation dealing exactly with defamation on the Internet. Defamation laws are applicable to publication generally, rather than specifically to particular media. Hence, the laws applicable to offline material are also applicable, in principle, to online material. However, the courts are being called on to work out how existing principles are to be applied to new context. The first reported trial concerning the application of defamation laws to online publications occurred in relation to posts on an Internet bulletin board in Western Australia in 1993.

Further, the laws of Australia involve provisions related to crime for criminal defamation and civil defamation. The civil responsibility rises from publication likely to damage image of individuals and fines are financial. The criminal responsibility rises from publication that influences the public having trend to threaten the public harmony, and fines in most areas contain custody. Normally, criminal defamation proceedings are commenced by law implementation authorities. In Australia, the criminal prosecution for defamation is exceptional. Though, during the last period, in Australia individuals have been sentenced for criminal offence. There are important modifications between criminal defamation law and civil defamation law related to responsibility and defences.

The defamatory matters differ among dominions of Australia. For objects of the defamation claims, the publication happens when data is carelessly or deliberately transferred in any mean, from the new article to the website, to the person other than person defamed. The media may be responsible for the republication of a defamatory statement made by other group or individual but cited in a newspaper. Mails to the editors that consisting confirmed offensive allegations or untrue statement, as well as advertisement showing in the publication. It also may be the foundation of the defamation suit against the news editors.

 In certain dominions, the common law definition relate, though in others such as Tasmania and Queensland, the meaning has been categorised. It is found that the material that could be found to be defamatory involves that which has trend to low the individual in assessment of other people, or that would incline to result in individual being rejected or ignored or that is likely to discover individual to disgust, dislike, or tease. According to 1996 report on defamation law, the defamation is discussed by A.C.T. Community Law Reform Committee as follows-

Who is able to be sued and liable?

Defamation means the publication of terms or descriptions to people that compensates the image of other person. The derogatory statement is one that is likely to cause ordinary, rational person to consider less of individual about whom terms are published. An interpretation which performs the offensive allegation is sufficient to take the stroke.”

The illustrations of defamation are as follows-

• A claim which may tend to cause an individual to be reviled or hated, or cause them to be handled with contempt by their aristocracy
• The publication of materials that gives an individual to tease, even if concerning absurdity. The publication of the images which confined an visual impression providing the look that somebody was guilty of offensive disclosure is offensive,
• Some misrepresentations have been held to be offensive. Deciding what is offensive is disreputably complex in these cases. The difference between artistic independence and offence will be the subject of lawsuit.

For better defamation act, it is required to be established that

1. The communication was published to others, such as to at least one individual other than the plaintiff such as individual or organisation.
2. recognises the accuser, for example, by title or by reference to minor group of individuals
3. Comprises the offensive statement or accusation

As per the provisions of law, an individual who is matter of defamatory publication may sue for offence or defamation. Though, the Defamation Act extensively limits the company’s rights to take legal action for defamation. Some non profit organisations or entities having less than ten workers may take legal actions for offence. It is not essential for a claimant to get identification by name in the offensive publications. It is enough to present that a rational individual understanding the words understands them as referring to a claimant. Claiming that the offensive materials were not proposed to refer to a claimant is not the crime, nor may it be stated that the references to the claimant is uncertain. In a matter, 2 individuals having same names effectively took legal action regarding to the similar offensive publications.

The publication that refers to the group of person instead of individuals only offends the people of the group if the rational individual regards it as referring to every sole person of the group. For instance, the statement, “all advocates are untruthful”, is not offensive of the specific advocate because a reasonable person would not think that the statement means that every sole advocate is not honest in Australia. The government authorities like government division or local councils may not take legal action for offence regarding the statement that remarks on the way it takes its general function. Though, a person lawmaker, member of local councils or public officers may take the legal action if the statement means the procedure with the help of which they individually take general function.

It is also significant to know that who is able to sued and liable. Until just, an individual who was liable for the newspaper, journal or transmit of the offensive statement might be sued by applicant. For an example, the authors, producers, editors, interviewees, managers, newscasters, and journalists even, in matter of the books, the printers or the newsagent or seller of books are able to be sued. Though, the applicants may only take legal actions against the one or more than one of what are recognised as the primary publishers, the writers, editors and the business publishers of the offensive publications. The printers, sellers of books and sellers of websites are the second publishers. These second publishers can only be sued in case where it is not properly logical for the applicant to take legal actions against the primary publishers. In the matter of offensive comments created by the interviewees in the programmes of television, the applicant could take legal actions against the interviewees making the remarks as writers and the company of production and broadcaster as the trade publisher, all primary publishers. Generally applicants take legal action one or more than one primary publishers with proper way to pay cost and compensation. The general delusion is that because the offensive remarks are created by the interviewees or contributors in the programmes and not in comments, the film-makers or the broadcasters may not be held liable lawfully. It is not so correct. The broadcasters and producers of films are responsible as trade publishers of the defamation.
If the applicants who take legal actions for offence victorious, they are likely to take the costs. In the different terms, it renders both justification and reimbursement for the damages caused by the false statement or offensive statement published about them. The court can also levy the final injunction barring the defendants to repeat the defamation. In the latest period, the court has attained certain more power which is of advantaged to successful applicant, making them to order the defendants to print the summary of the order. Where the applicant has been successful against the editor of the offence, the court may also order other parties that are people other than the losing defendant, to eradicate the offensive materials such as material edited by someone on the websites of others. The offences which can be successfully pleaded regarding the offence action vary throughout jurisdiction of Australia. Depending on the jurisdiction, these may involve the following, on the basis of the organisation.

1. justification , fairness and the truth
2. flaxen and fair comments
3. complete right (it connects to an event, not to the speaker, like during the time of parliamentary proceeding, the judicial proceeding and quasi-judicial proceeding, administrative statement and communication between partners)
4. competent benefits (like the fair and correct report of procedures of parliaments, judicial actions or the procedures, public meetings concerning subject of public interest or public concern)
5. permission (such as where the claimant specifically or impliedly consent to the publication of the specific charge)
6. inconsequentiality (like where the conditions and events of the publication were minor to the scope that the individual defamed was not likely to take damages)
7. Guiltless broadcasting (like applicable to re-distributors or re-publishers such as book seller or news agents, involving potentially to CHs or ISPs.

What defences are available? (incl. defences available to Internet Service Providers/Content Hosts)

The circumstances in which the above defences can be appropriate vary among the constitution of Australia. For example, truth alone is not a defence in all jurisdictions. In some, the defendant should also prove that the publication of the correct statements or charge was made for the benefits of general people or relates to the case of public interest (New South Wales).

Furthermore, the Broadcasting Services Act (Commonwealth) gives the legal security defence to the internet service provider who takes the Internet content in Australia. They were not attentive that they were making the offensive publication. It also provides that a law of state or region, or the rules of common law or justice, have no consequence to scope to which it:

1.  would have direct or indirect effects of exposing, the internet contents host or ISP to civil liability or criminal liability regarding the taking specific internet contents in the matter where internet service provider was not alert of the scope of the internet contents, or
2.  Needs or would have direct or indirect effects of exposing, the internet contents host or ISP to review, conduct queries about, or make record of, internet contents made by the internet service provider internet content host.

The meaning of internet content ignores ‘normal electronic mails’ data, which is conveyed in the method of the broadcasting services and data, which is not made on the data storing devices. Hence, the Clause 91 defence will not be available in the matters including these materials. In these matters, the internet service providers can be capable to trust on the protection of blameless broadcasting.

Moreover, defamation action under Australian law can be begin in any region or state, where the purportedly offensive materials were edited. However, there are some elements relevant to where the end outcome on the specific matter will be made. The same schemes of cross-vesting jurisdictions were passed by the Commonwealth and the State or territory in year 1987. As per this method, an action commenced in Supreme Court of one jurisdiction may be shifted by the courts to other court of different jurisdiction when this shifting will be in the interest of fairness. The publishers can have foundations to apply to the court to commence the trial on the basis of "forum non-convenience". It includes representing that dominion, where the proceeding has been established is simply not appropriate. For representing it, the defendant should satisfy the local courts in the Australian courts where the specific proceeding has been instituted that it is so inappropriate a forum for their determination that their continuation would be repressive to the defendant (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197).

Regarding the materials published on internet, there have some orders of Australian court to state the date and address where or when materials made accessible via Internet is "published.”For this reason, a claimant can select to the originate an offensive act in the State with the rules and regulations most favourable to matter of claimant, which is, not respective with place of the server used to create the materials available or the place of the defendants or claimants.

Which jurisdiction's law applies?

Furthermore, as defamation law in other nations along with Australia allow the offensive actions to be taken under the law if material was available in the command, people who editor share the material on the network can search them facing offensive act under the laws of nation excluding the nation of residence. 

The case Dow Jones & Company Inc v Gut nick, was case of Internet defamation case came in Australian High Court, and decided on 10 December 2002. The article in question was unconstrained Unholy Gains, by William Alpert, available in Barron's 2000. It was proved in the court that only 5 copies of edition of Barron were delivered from New Jersey. So that it might be circulated in Australia, however these copies of edition did not arrived in the Jurisdiction. Gut nick therefore resorted to online publication based on internet to represent the tort in jurisdiction. The magazine available online on the basis of internet had 550,000 worldwide subscribers and approximate 1700 credit cards of Australia. It was argued by Geoffrey Robertson QC that publisher Dow Jones as to whether it was regarded as edited from, where it was posted in New Jersey or edited into where it was copied by users in Australia. The disagreement was on journal and jurisdictions.

 The decision of the court apprehensions the location of Internet materials publication and the proper jurisdictions, where the offensive actions can be taken. This case includes materials copied in the Victoria from the web site in the United States. The Supreme Court of Victoria decided the matter could be considered in Victoria. On 21 September 200, it was denied by Dow Jones to reject the appeal by the Court of Appeal of Victoria and then required and was decided leave to appeal to High Court. The High Court supported the Supreme Court judgement in the governing of 10 December 2002. Similar facts have been established in the case of Gutnick v Dow Jones & Co Inc.

In the case of The Buddhist Society of Western Australia Inc v Bristile Ltd &Anor,the step is taken regarding the material’s publication on net. The particulars, as they appear from the pleading, are that applicant is producer of bricks with the clay pit located not far from the Bodhinyana Buddhist Monastery in roundabout. The local area was semi-rural and the monastery site was selected for the privacy. The applicant has taken the permission of government to lorry the clay by sources of heavy transport vehicle on the way that runs past the monastery. These permission was taken in spite of violent opponent from the first defendant. It was held by the Supreme Court of Western Australia that separate letter and other materials on same website established distinct publications, noting that in each matter the electronic presence of the document was significantly separate the file.

The Five Liability Models of Internet Intermediaries

Further in the case of Macquarie Bank Limited &Anor v Berg, by filing writ on 26 May 1999, the plaintiff, Macquarie Bank Ltd and Andrew James Downe, look for the judgement limiting the defendant, Charles Joseph Berg, from publish of some materials on net. The writs first came before B M James, who shortened the service period and regulated that the service be influenced by making delivery of the certification on Messrs Hickson Wisewoulds and by delivering the copy of the documents, noticeable for the concentration of the defendants, to a particular email address. At the time of presentation of matter on 28 May 1999, it was confirmed that the plaintiff had met the terms with the instructions as to the services. Mr Dalgleish of counsel was presented as civility in the court, to allow receipts of the papers by Hickson Wisewoulds. The judgement rejecting to provide injunction to confine publication of the matters on internet because to do so would be to cover the law of New South Wales relating to offence on each state, territories and nation.  Rindos v Hardwick, is the first defamation matter of Australia concerning posting on the Internet bulletin board.

The Australian Law Reform Commission (ALRC) Plays an important role. It is independent legal body of Australia established to make review in the Australian Law. The law reform commission inquiries and reports are recommended as follows-

1. Defamation Report, A.C.T. Community Law Reform Committee, 1996-  it is recommended by the Defamation Report, A.C.T. Community Law Reform Committee, 1996 that "The ACT Legislative Assembly is required to pass the new offensive laws and specified that the current offensive laws are vague, inconsistent and fragmented.
2. Defamation Discussion Paper 32, New South Wales Law Reform Commission (NSWLRC), 1992
3. Defamation (Report 75), New South Wales Law Reform Commission (NSWLRC), Oct 1995
4. Unfair Publication: Defamation and Privacy, Australian Law Reform Commission Report, Report No. 11, 1979

In addition, the difference between United Kingdom defamation law and American defamation law can seem unimportant, but they are progressively significant in moving and internationally united world. The most significant cause to be alert of the difference in the United Kingdom defamation law and the United States defamation law is that claimant approachable British law can have the frightening influence on speech in USA. The concepts are simply exchanged between the American citizens and the citizens of England and therefore, the fear of handling the litigation in England may lead to probable offenders eradicating contents from book, publications, news journals, and materials accessible online.

The United Kingdom defamation law arose to secure the citizens, who felt that image had been unfairly damaged, from resorting to fierceness against the suspected defamers. The United Kingdom defamation law is not restrained by the first amendment or same provisions because United Kingdom does not have written Constitution. The concepts of constitutional rights are forged in common law and usually reviewed by court. Unlike American defamation Law, the English libel law sets high value on the security of own image and has conventionally "paid lip services" to social value in liberty of appearance. Unlike the United States standards that normally puts the load of showing the falseness of statements on the complainant, in United Kingdom, the burden of showing the fact of statement falls directly on the shoulder of defendant because in defamation claim his terms are supposed to be untrue.

Strict Liability, Broad Immunity, Safe Harbour, Generalist, and Notice-and-Notice

As per the above analysis, it can be concluded that the courts of Australia face the complex query when understanding the defamation laws. The defamation law is still not clear about when somebody may be liable for the acts of unconnected third person. Australia should follow the defamation laws of other countries for balancing the effects. The defamation law does not work fine to secure the image. It secures the dialogues and debate essential to search for the fact. More speeches and more writings is the response to the problems in place of the defamation law that disappoints speeches and writings and overwhelm even data that probably might not be found offensive if it referred to the court. The available statements involving defamatory ones are open, available to be criticised and refuted. The worst portion of defamation law is its chilling effect on open speeches.

The Defamation Act, 2005 (NSW)

The Defamation Act, 2005 (Queensland)

The Defamation Act, 2005 (SA)

The Defamation Act, 2005 (Victoria)

The Defamation Act, 2005 (WA)

The Defamation Law

Dow Jones & Company Inc v Gutnick [2002] HCA 56, Australian High Court, 10 Dec 2002

Macquarie Bank Limited &Anor v Berg, New South Wales Supreme Court (NSWSC 526), 2 June 1999

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Rindos v Hardwick, Supreme Court of Western Australia, (unreported), 31 March 1994

The Buddhist Society of Western Australia Inc v Bristile Ltd &Anor [2000]

Bartolini, Cesare, Liability of Intermediary Service Providers (Oxford, 2015).

Collins, Matthew, Collins on defamation (Oxford University Press, 2014)

Douglas, Michael,Their Evil Lies in the Grapevine Effect’: Assessment of Damages in Defamation by Social Media. (Oxford, 2016).

Ford, Roger, How the Supreme Court Ignored the Lesson of ‘Zeran’and Screwed Up Copyright Law on the Internet (Routledge, 2017).

Jones, Hugh, and Christopher Benson, Publishing law (Routledge, 2016).

Morrison, George, Someone Commented on Your Facebook Post: When will Online Intermediaries be Liable as Publishers of Third Party Defamatory Content?. (Routledge, 2016)

Parkes, Richard, Alastair Mullis, Godwin Busuttil, Adam Speker, and Andrew Scott. Gatley on libel and slander. No. Rev. 1. (Sweet & Maxwell, 2015)

Rolph, David, Reputation, celebrity and defamation law (Routledge, 2016)

Bennett, Thomas DC, Why so serious? Lachaux and the threshold of ‘serious harm’in section 1 Defamation Act 2013. [2018] Journal of Media Law 10

Tong, Kar-wai, ‘Online Legal Risks in Social Media: Lessons from a Few Court Cases in Hong Kon’ [2018] In New Media, Knowledge Practices and Multiliteracies 23