13 Apr 2013

Internet defamation case round-up

Submitted by Troy Rollo

Internet based defamation cases have become a big thing in the last year. Here is a round-up of some of the interesting Australian defamation cases:

Cripps v Vakras [2012] VSC 400 (Beach J)

Defamation based on publication on a web page. In the argument which led to the case, it seems the plaintiff had the choice to invoke either Godwin’s law or defamation law. He chose the latter.
In this hearing the plaintiff sought to strike out various aspects of the defence. It seems that the defendant was seeking to rely on material linked to from the allegedly defamatory web page to put the publication in context, although the wording of the pleading does not seem to get there, being:

5. He admits the allegations made in paragraph 5 and further says that the first Vakras article consisted of the words set out in annexure A to the further amended statement of claim, together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial.

It is difficult to see how the hyperlinks themselves could add context – only the linked pages might be capable of doing that. This is how the Court construed the pleading, but queried how far this would go:

9 While I will permit the first defendant to maintain his plea in respect to hyperlinks, in my view, the pleading as it currently stands lacks necessary precision. In its current form, it might be possible for the first defendant to rely on any number of pages from the internet that might be hyperlinked to the first Vakras article, either directly or via a chain of hyperlinks. In the circumstances, I will order the first defendant to provide particulars of the hyperlinks referred to in paragraph 5 of his further amended defence and particulars of the precise words and images upon which the defendants will rely as alleged in that paragraph.

Leighton v Garnham [2012] WASC 314 (Le Miere J)

Another defamation case involving web site publications. In Court on an application by the defendants to strike out aspects of the pleadings.

In this case the Plaintiff has pleaded a particular page on the defendants’ web site as defamatory. The web page was a response to another document, which was linked to, and included in an illegible image within, the web page. The Defendants argued that the page had to be taken together with the linked document, which gave it context and that the pleading should be struck out unless it pleaded the document and the web page as a single composite publication. The Court found that it was a question of fact how much a linked-to document formed part of the context of the web page, so a plaintiff could plead the single page as defamatory without the linked-to page [44]-[53].

Trkulja v Yahoo [2012] VSC 88

The Victorian Supreme Court found Yahoo liable for defamation by reason of a news article which Yahoo republished in a dynamically generated news page based on material found by its search engine in the Herald Sun newspaper and other sources.

Trkulja v Google [2012] VSC 533

The Victorian Supreme Court found Google liable for defamation by reason of search results, image search results, and cached pages, even if it had no knowledge of the defamatory nature of the contents, and both for content that was entirely generated by others, and content generated automatically by Google's software.

Rana v Google Australia [2013] FCA 60

The Applicant (proceeding without representation) sued Google Australia, Google Inc, and 2 individuals who maintained web sites hosted on sites.google.com, for defamation and racial discrimination. The discrimination claims were summarily dismissed as there was no suggestion that the treatment was different than would have been different treatment if the Applicant had been of a different race. The defamation claim against Google Australia was also summarily dismissed, as Google Australia has no control over the web sites or the domain names. The Court declined leave to serve overseas on the current state of the pleadings, and also deferred a decision on the summary dismissal applications by the individual respondents to allow the Applicant to amend. The Applicant discontinued 5 days later.