One of the issues currently perplexing defamation judges, practitioners and academics is the liability of search engines for defamation.
In particular, the issue of whether a search engine is a publisher for the purposes of defamation law is one which is causing acute concern around the world.
The long-awaited decision of the Full Court of the Supreme Court of South Australia in Google Inc v Duffy, delivered last week, is the most recent addition to the growing case law on this issue.
Regrettably, it raises more questions than it answers.
It may be that search engines like Google will be held, in many instances in defamation law, to be publishers of defamatory matter.
That seems to be the prevailing trend in the case law worldwide. What is important, though, for the orderly, principled development of defamation law is how such a position is reached.
With respect, the judgments in Google Inc. v Duffy contribute to the conceptual confusion, rather than clarifying it.
This is particularly so in relation to the place of intention and knowledge in defamation law.
It is not possible, given the constraints to space, to analyse all of the issues arising from the judgments in Google Inc v Duffy, so this column will concentrate on the issue of publication and the role of intention and knowledge.
Internet technologies are forcing defamation lawyers to rethink the basic principles of publication, in ways that previous mass media technologies did not.
Traditionally, any person who voluntarily participated in the dissemination of defamatory matter has been treated as a publisher of defamatory matter.
Liability for publication of defamatory matter is broad and strict. Indeed, the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones & Co. Inc v Gutnick described defamation as a tort of strict liability.
Kourakis CJ quotes this in his judgment in Google Inc v Duffy.
Notwithstanding the recognition, in passing, that defamation is a tort of strict liability, the judgments in Google Inc. v Duffy deal at length with the issue of intention as an element of the tort of defamation, as well as distinguishing between what their Honours describe as the physical and the mental elements of the tort.
In relation to the latter, it is unclear why there is a need to distinguish between the putative physical and mental elements of defamation if defamation is a tort of strict liability.
The related, more specific issue of intention occupies a more complex place in the reasoning in Google Inc v Duffy.
Kourakis CJ found that the tort of defamation requires that the publisher knew that the matter contained defamatory material.
His Honour then divides publishers into primary and secondary publishers. The distinction is drawn from the line of authority dealing with innocent dissemination.
For primary publishers, Kourakis CJ (pic) reasoned that knowledge of the defamatory matter – and therefore the intention to publish it – is presumed, whereas such knowledge and intention can be rebutted by a secondary publisher.
In his separate judgment, Hinton J took a different approach, finding that the mental element of defamation differed, depending upon whether the publisher was a primary or a secondary publisher.
In relation to primary publishers, Hinton J found that they were strictly liable, whereas, for secondary publishers, they are strictly liable, and the plaintiff does not need to prove any mental element, but they can avoid liability by establishing a defence of innocent dissemination.
Taking away the references to the putative mental element of defamation, Hinton J’s approach seems to be an entirely orthodox approach to the issue of publication and innocent dissemination.
The division of defamation into physical and mental elements is an unhelpful distraction.
What Kourakis CJ appears to do in his judgment is to seek to rationalise, as a matter of principle, the element of publication in defamation law in light of innocent dissemination.
With respect, there are some difficulties with this approach.
First, innocent dissemination was initially recognised, in the last quarter of the nineteenth century, as a plea of “no publication”, but has now been decisively recognised as a freestanding defence.
This is both at common law, in the High Court’s decision in Thompson v Australian Capital Television Pty Ltd, and under the national, uniform defamation laws.
Given that innocent dissemination is now properly regarded as a defence, it is unclear why the publication, as an element of the plaintiff’s case, needs to be re-thought in light of it.
As Hinton J suggests in judgment, the distinction between primary and subordinate publishers only arises if the defendant raises a defence of innocent dissemination.
The distinction between primary and subordinate publishers is not one which has to, or should, inhere in the structure of defamation law.
It is only engaged when a defendant pleads a defence of innocent dissemination. It is only then that the defendant’s knowledge becomes a critical issue.
Secondly, innocent dissemination was initially recognised as an exception to the rule that liability for publication of defamatory matter is broad and strict. Innocent dissemination was developed to overcome the harshness of such broad and strict liability.
Innocent dissemination remains an exception to the general rule of strict liability, as the joint judgment in Dow Jones & Co. Inc v Gutnick suggests.
It seems inapposite to elevate an exception to the level of a general principle.
Thirdly, it is important to bear in mind that innocent dissemination entered defamation law as an avowedly policy-based exception in response to changed patterns of media consumption.
It was a response to news vendors and lending libraries being sued for defamation.
Innocent dissemination may have been integrated into defamation law but its historical origins should not be overlooked and it should not be treated as if it were always a matter of pure principle.
Innocent dissemination demonstrates the capacity of the common law to adapt to technological changes not solely based on principle but in light of difficult issues of policy and technological realities.
It may be that the time has arrived that the technological changes brought about by search engines require a different response from defamation law from the way mass media publishers are treated.
Pure principle may not always supply the answer; policy choices may have to be made.
The judgments in Google Inc v Duffy invoke a number of terms which may be relevant to the resolution of the difficult issue of whether a search engine should be held liable as a publisher of defamatory matter: intention, knowledge, authorization, adoption, approval, endorsement, incorporation and control.
The length of the list indicates the difficulty of identifying the precise juridical basis of holding a search engine liable as a publisher of defamatory matter.
The issue remains contestable. It seems inevitable that the High Court will end up having to deal with the issue soon, if not in this case, then in another like it.
*Professor David Rolph teaches 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.