Report on Defamation Law in Australia: Case Studies and Legal Analysis

This report provides an analysis of several key Australian defamation law cases, focusing on the liability of internet intermediaries like Google and Yahoo!. The cases discussed include Duffy v Google Inc, Clarke v Nationwide News Pty Ltd, Silberberg v Builders Collective of Australia Inc, Trkulja v Yahoo! Inc LLC, Rana v Google Australia Pty Ltd, Visscher v Maritime Union of Australia (No 6), and Bleyer v Google Inc LLC. The report examines issues such as the liability for automatically generated search results, the responsibility for user-generated content, and the impact of hyperlinks on defamation claims. It explores how courts have addressed the definition of publication, the role of intermediaries, and the application of the Racial Discrimination Act 1975 (Cth) in the context of online content. The analysis highlights the evolving legal landscape surrounding online defamation and the challenges of balancing freedom of expression with the protection of reputation.

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Summary of Article

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In the case of Duffy v Google Inc [2011] SADC 178, the plaintiff (Dr Janice Margaret Duffy)
filed a suit for defamation against the first defendant (Google Inc.) and the second
defendant (Google Australia Pty Ltd). The internet intermediary, in this case, was Google.
The issue in this case was whether Google is liable for automatic defamatory content shown
in its results. The court held the defendants liable for defamatory content of hyperlinks and
snippets which were shown in search results for the plaintiff’s name and the defamatory
content of search which autocompletes her search result (Jade, 2011). Conclusively, this
case imposed defamatory liability on internet corporations which provide their service
based on automatic algorithms.
In the case of Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345,
the applicant is Natalie Clarke, and the respondent is Nationwide News Pty Ltd Trading as
the Sunday Times. The issue was whether the respondent is liable for vilifying comments
posted by a reader under section 18C of the Racial Discrimination Act 1975 (Cth) which
imposes a prohibition on saying or doing unlawful things on the basis of race. The court
provided that news website is liable because it actively sought comments and decide
whether to publish or modify them. In conclusion, internet intermediaries such as the
respondent that have effective control of their services can be held liable if they have
sufficient knowledge of any legal violation.
In the case of Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475, the
applicant was Ron Silberberg, and the first respondent was the Builders Collective of
Australia Inc and the second respondent was Ken Buckley. The issue was whether the failure
of the first respondent to remove offensive posting violates section 18C of the Racial
Discrimination Act 1975 (Cth). The internet intermediary was the Builders Collective which
was operating a discussion form on its website. The court provided that the second
respondent is liable under section 18C for making offensive post (Turner, 2014). The court
also provided that the first respondent had the knowledge and it failed to remove the post.
However, it was not proved that the post was not removed because of Jewish race or
ethnicity of the applicant based on which the case against the first respondent was
dismissed.

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In the case of Trkulja v Yahoo! Inc LLC [2012] VSC 88, the plaintiff was Milorad Trkulja, and
the first defendant was Yahoo! Inc. LLC and the second defendant was Yahoo!7 Pty Ltd. The
issue is relating to liability of search engines for publication of defamatory material. The
internet intermediary was Yahoo! Inc. The court provided that the publication was made by
the first defendant and it adversely affected the reputation of the plaintiff who had a good
reputation in the community (Curtis, 2016). The defamatory material remained available on
the website of Yahoo for a long period without being removed by the first defendant which
caused significant grief and distress to the plaintiff, thus, the court provided that the plaintiff
is entitled to damages.
In the case of Rana v Google Australia Pty Ltd [2013] FCA 60, the applicant was Ranjit Rana,
and the respondents were Google Australia Pty Ltd, Darda Gregurev, Nina Gregurev and
Google Inc. The issue is whether Google is liable for a third party’s defamatory website
which is shown in its search results. The court provided its judgement based on Trkulja v
Yahoo! Inc LLC case by providing that Google was not the publisher of the defamatory
content and the results were shown automatically (Curtis, 2016). Conclusively, this
judgement is opposed to Duffy v Google Inc. case in which the court held Google liable for
displaying defamatory content.
In the case of Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350, the plaintiff
was Timothy Visscher, and the defendant was Maritime Union of Australia. The judgement
was given in New South Wale Supreme Court. The issue was whether an article’s online
hyperlink to another defamatory article could be considered as a publication. The court
provided that the hyperlink did not constitute as a publication because it did not actually
repeat defamatory material (Monemvasitis and Leontiev, 2014). The hyperlink merely
identifies the location of the defamatory article. Similar judgement was given in Rana v
Google Australia Pty Ltd in which the court provided that automated search results of a
defamatory article did not constitute as defamation.
In the case of Bleyer v Google Inc LLC (2014) 311 ALR 529, the plaintiff is Roland Frank
Bleyer, and the defendant is Google Inc. LLC. The proceeding of this case was instituted in
NSW Supreme Court. The internet intermediary was Google. The issue was whether Google
is a publisher of defamatory material and whether there is substantial disproportion

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between reaching a conclusion and the cost of the trial. The court provided in the first issue
that Google is not the publisher because the search results are automated. In the second
issue, the court provided that the disproportion between the stay and dismissal of
proceedings is so vast that a remedy should not be allowed to be pursued (Harvey, 2017).
The court provided that the claim be difficult to make and the judgement would be
unenforceable on Google in the US, thus, the claim is out of all proportions.

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References
Curtis, C. (2016) Internet defamation. Precedent (Sydney, NSW), (132), p.16.
Harvey, D.J. (2017) Collisions in the Digital Paradigm: Law and Rule Making in the Internet
Age. London: Bloomsbury Publishing.
Jade. (2011) Duffy v Google Inc & Anor. [Online] Available at: https://jade.io/j/?
a=outline&id=263713 [Accessed 10/11/2018].
Monemvasitis, P. and Leontiev, K. (2014) Defamation using hyperlinks – To link or not to link
– Take Care - Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350. [Online]
Available at:
http://www.mondaq.com/australia/x/317194/Libel+Defamation/Defamation+using+hyperli
nks+To+link+or+not+to+link+Take+Care+Visscher+v+Maritime+Union+of+Australia+No+6+2
014+NSWSC+350 [Accessed 10/11/2018].
Turner, R.J. (2014) Internet defamation law and publication by omission: A multi-
jurisdictional analysis. UNSWLJ, 37, p.34.