Civil Litigation, Defamation

Australian courts lead the way in fighting online defamation: Winkler

By AdvocateDaily.com Staff

Australian courts continue to lead the way when it comes to online defamation and the liability of secondary publishers, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

In a recent decision, the District Court of South Australia held the author of a defamatory Facebook posting liable for subsequent slanderous comments on the post by other social media users.

“At first blush, it seems extreme, but what the decision really does is it recognizes the importance of reputation and imposes a responsibility on those using social media to take care with what they write,” says Winkler, principal and founder of Winkler Dispute Resolution.

“This will have a far-reaching impact,” he adds, noting that its significance extends beyond Australia’s borders because the country — like Canada — is a common-law jurisdiction.

In addition, Winkler says it’s just the latest in a series of Antipodean judgments on similar issues.

For example, a previous decision by the Supreme Court of South Australia affirmed Google’s liability as a secondary publisher after it was notified of defamatory material in search results and failed to remove them.

Another case saw the Australian High Court rule in favour of a man who alleged Google should be held responsible as a publisher due to search results that suggested he had criminal ties.

“This new decision follows the theme of previous rulings, which suggest that with the facilitation of communication comes responsibility,” Winkler explains. “That applies equally to service providers such as Google or Facebook, and to ordinary individuals who provide a medium for others to air their views on their personal pages."

The new case arose out of a development dispute between a pop-up farmers’ market operator and the owner of two local fruit and vegetable shops. According to the decision, the market owner took to Facebook following the shop owner’s objection to its relocation.

In addition to finding the market owner’s original posting defamatory, the court ruled that a number of the 4,500 comments underneath it were also libellous. Although the comments were written by others, the court found the defendant liable as a secondary publisher by creating the opportunity for them to be made.

By allowing comments, the court found the defendant assumed responsibility to monitor them and “remove those which were inappropriate,” despite the defendant’s arguments that it was impractical for him to control commenters or monitor such a large volume of material.

Describing the comments under the post as little more than “vulgar abuse,” the court ruled they “emphasised and adopted the defamatory imputations carried by” the original post, and awarded the plaintiff AUS$100,000 in damages.

“What the court is saying is that under those circumstances, you have a positive duty to review the content of comments and remove those that are objectionable,” Winkler says. “If you don’t and they are defamatory, then you re going to be held liable as a secondary publisher.

He says comparisons to more traditional means of publishing can help people understand how the court came to its decision.

“I liken it to the letters page of a newspaper. I don’t think there would be much dispute if a publisher was held jointly and severally liable with the author if it printed a defamatory note from a reader in response to an article that was also found to be defamatory,” Winkler says. “This is an extension of that same idea into the world of online and social media.”

Taken together, he says the various Australian decisions could see online service providers held liable for various types of defamatory internet postings, including business reviews.

“At some point, legislators or service providers, through public pressure, are going to have to accept that with the provision of communication comes a degree of responsibility,” he says. “Something will have to change if other jurisdictions follow the lead of the Australian courts.”

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