In this piece, which originally appeared in the Gazette of Law and Journalism in November 2010, media law academic Dr David Rolph* looks at the impact of new forms of communications on defamation law. Where does the defence of innocent dissemination come in? And are internet service providers, website hosts and search engines really publishers?
Internet technologies have clearly revolutionised the way in which we communicate. Their impact on the law applicable to those communications has been less dramatic.
It has been almost a decade since the High Court’s decision in Dow Jones & Co Inc v Gutnick
The case elicited vehement editorials from The New York Times and The Wall Street Journal, denouncing the High Court for its perceived jurisdictional grab over internet defamation cases.
Far from being revolutionary, Dow Jones v Gutnick has proven to be a straightforward application of common law principles to an entirely expected outcome.
However, the common law principles of defamation law may not always be applied so easily.
The current litigation in the Supreme Court of Victoria will test whether the search engine, Google, can be held liable as a publisher for the purposes of defamation law.
This gives rise to the questions: what do we mean by publication? And who is a publisher?
It is relatively easy to qualify as a publisher of a defamation. The common law’s starting point was that any person voluntarily participating in the dissemination of defamatory matter could be held liable as a publisher.
As Lord Justice Romer observed in Vizetelly v Mudie’s Select Library (1900) this approach was potentially a harsh one.
To overcome the stricture of the common law’s approach to publication, English courts in the late nineteenth century developed a plea of innocent dissemination.
Subordinate distributors of defamatory matter, such as newsagents and libraries, could raise a defence of innocent dissemination in circumstances where they did not actually or constructively know that they were disseminating a defamation and their lack of knowledge was not due to negligence.
What is clear is that this plea of innocent dissemination, as it developed in the late nineteenth century, was viewed as a policy-based exception to the principle of publication.
From Emmens v Pottle (1885) onwards, the English courts allowed a means by which people not really as responsible for a defamation as the writer and commercial publisher, could avoid liability.
The defence, of course, was not always successful for these “subordinate distributors”.
How do concepts of publication and innocent dissemination apply to internet intermediaries?
Should internet service providers, website hosts and search engines be able to avoid liability for defamation?
There has been an interesting line of authority emerging in the UK dealing with these issues.
In the most recent case, Mr Justice Eady observed that:
“It is surprising how little authority there is within this jurisdiction applying the common law of publication or its modern statutory refinements to internet communications”.
In Godfrey v Demon Internet Ltd Justice Morland found that an ISP that was notified about a defamatory posting stored on its server but took no steps to remove it could be held liable as a publisher of the defamation.
But in Bunt v Tilley, Mr Justice Eady found that an ISP which merely provided internet access but did not host the websites containing the defamatory content could not be held liable as a publisher of the defamation.
As a matter of principle, his Lordship drew a distinction between “publishers” and “mere facilitators”.
Here, the ISPs in question were “mere facilitators” to which no liability for defamation could attach.
And in Metropolitan International Schools Ltd v Designtechnica Corp Mr Justice Eady found that Google could not be held liable as a publisher.
In this case, the plaintiff argued that defamatory matter originally posted in Designtechnica’s online forums was searchable through Google by third parties.
His Lordship noted that Google had no control over the search terms entered and that, once the terms were entered, the search was executed automatically and the results were produced without any human intervention.
He concluded here that Google was not a publisher, but a mere passive facilitator of the defamatory matter.
Mr Justice Eady went on to find that, because Google was not a publisher, the fact that Google might be made aware of the presence of the defamatory matter but do nothing about it, could not transform it into a publisher.
In both Bunt v Tilley and Metropolitan Schools v Designtechnica, Mr Justice Eady (pic) observed that, because the internet intermediaries were not publishers, they had no need for a defence of innocent dissemination.
What is interesting about the recent line of UK authority is that it demonstrates an important development in the principles relating to publication.
Liability for publishing defamatory matter is broadly based. Innocent dissemination was introduced as a policy-based limitation on the extent of liability for defamation.
The challenges of internet technologies have compelled courts to rethink what it means to publish defamatory matter and who should be held liable as a publisher.
UK courts have responded by reconsidering basic principles, drawing a distinction between “publication” and “mere passive facilitation”.
It will be interesting to see whether Australian courts adopt this approach.
While internet technologies have caused a communications revolution, their impact on defamation law has been more evolutionary.
They compel courts to reconsider and refine basic principles, rather than jettisoning them and starting all over again.
*Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).
The Gazette of Law and Journalism is Australia’s leading online media law journal. It has, since 1986, been covering court cases, legislation and policy issues that affect the media. It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.