Defamation on the Internet and Social Media

Contributed by Susan Platis, Legal Aid ACT and Ben Aulich (https://aulich.com.au/) and current to June 2018.

People posting on social media need to be aware that the law of defamation applies to them. There are an increasing number of cases in Australia where parties have successfully sued an individual for social media posts (e.g. Mickle v Farley [2013] NSWDC 295, Dabrowski v Greeuw [2014] WADC 175, Polias v Ryall & Ors [2014] NSWDC 1692).

Publishing matter on the internet is the same as other kinds of publication. This can be complicated when the internet publication has been generated overseas. If the matter relates to a party who lives in Australia then that party may be able to successfully argue that Australian law should apply to the publication, although issues about choice of law can be complex (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575).

Under Schedule 5, s90 (1) of the Broadcasting Services Act 1992 (Cth), an Australian internet service provider or content host cannot be held liable for content of which it was not aware (see also Civil Law (Wrongs) Act s139C, defence of innocent dissemination). An issue of liability may arise, however, where the provider or host has been notified of the defamatory material and failed to take it down within a reasonable time.

Case Study

In Trkulja v Google Inc [2012] VSC 533, the plaintiff had been photographed with famous criminal figures, under the headline 'Melbourne Crime'. This article appeared with a Google search of his name. The plaintiff wrote to Google and notified them of the offending article. Google was held liable for the publication after Google was made aware of it, but not liable for any publication prior to that date.