Feeling lucky? Bloggers and defamation liability

Commenter Chris Lloyd asked the other day whether I had any observations about the risks of defamation action against bloggers. As it happens I do. Moreover, it’s an opportune time to muse on the subject because there’s a fairly new uniform national Defamation Act that is relevant to the question.

Many bloggers seem to believe that the Internet is a law-free zone of rampant libertarianism where you can say whatever you like without fear of being sued. That just isn’t true, and with the growth in popularity and visibility of blogging, it’s inevitable that a blogger is going to discover that to his or her cost one day soon. Accordingly, it’s as well to be aware of the legal principles, to maximise the chances that you don’t make blogging history for all the wrong reasons. Keep in mind that the following is not legal advice, and you shouldn’t rely on it as such. If you have a concern about whether anything on your blog might be defamatory, you should consult a lawyer for specific legal advice. All that the following can do is provide a general outline of the principles and issues.

Electronic Frontiers Australia has a page on defamation and the Internet that provides a useful starting point:

Defamation action may be brought, not only against the original publisher (writer/speaker), but also against anyone who takes part in the publication or re-publication of the material. Furthermore, re-publication by someone other than the original writer may result in an action against the original writer as well as the re-publisher.

In relation to defamatory material published on the Internet:

• Internet users may be sued in relation to material they write/publish themselves, or if they re-publish/distribute material written by someone else. They may also be sued if another person publishes something they wrote, for example, an email published without the writer’s permission on a web site.
• Internet Service Providers (ISP) and Internet Content Hosts (ICH) may be sued in relation to information published by someone else, for example, published by a person who used an ISP’s or ICH’s system, web server, chat boards, etc, to make information available via the Internet.

However, the fact that a person can be sued does not necessarily mean they would be found liable by a court. There are numerous aspects relevant to liability.

If you’ve posted the defamatory words yourself, there is no possibility of relying on a defence of innocent dissemination. You would have to rely either on proving one of the more usual defences to defamation (truth, fair comment, qualified privilege etc) or on the pragmatic hope that the prospective plaintiff views you as too small a fish to be bothered frying suing. This will apply even when you are quoting someone else in your post, and the defamatory words were originally uttered by them. You are knowingly re-publishing the words and so you are potentially liable for them.

That probably also applies where you knowingly hyperlink to a specific post or article by someone else (as opposed to a general blogroll link) of whose content you are aware. You would usually be aware of the content of a specific post you have linked otherwise why would you bother linking to it in the first place? You may be liable for linking to a defamatory article because by doing so you are drawing attention to it and therefore re-publishing it, although that conclusion isn’t completely certain.

As Melbourne University’s David Lindsay explains in an excellent five part article in MS Word format (note that it predates the new uniform Defamation Act):

A number of authorities deal with whether directing a person to defamatory material amounts to publishing the material, or to republishing the original material by reference. None of the authorities, however, are concerned with situations that are precisely analogous to hyperlinks. It should be borne in mind that the liability of a content provider for hyperlinked material is a novel issue, and that the decided cases cannot be treated as determinative. Perhaps the closest authority is the nineteenth century English case, Hird v Wood. In that case, it was held that evidence that a person sat by a defamatory placard beside a roadway, and pointed to it whenever others passed, was sufficient to constitute publication of defamatory material on the placard. This may be compared with an earlier case, Smith v Wood, in which it was decided that there was no publication when the defendant showed a defamatory caricature to another upon request. Nevertheless, as Gatley contends, the decision in Smith v Wood seems difficult to reconcile with the principle that defamatory material is published if it is communicated to others. In Lawrence v Newberry, the issue was whether a letter published in a newspaper, which referred readers to a speech in the House of Lords, constituted publication of defamatory matter in the speech. The Court held that reference to the speech in the letter might be sufficient to amount to publication of material in the speech by the author of the letter.

The question of whether directing others to defamatory material is a publication has also arisen in the United States. In Lindley v Delman it was held that requesting persons to go to a place where defamatory material could be read was a publication. In that case, however, the defendant had also personally exhibited the document to several persons. In MacFadden v Anthony, a case sometimes contrasted with Hird v Wood, the issue was whether a radio commentator, who referred to a magazine article, published defamatory material contained in the article. Without much discussion, the Court held that merely drawing attention to the article, without repeating the defamatory material, was not a republication, and the broadcasting company was not liable.

Although the case law is not entirely clear, contrary to what many may believe, incorporating a hyperlink to associated Web content may possibly render a content provider liable for publishing defamatory material published on the hyperlinked documents. This is because a hyperlink may be interpreted as directing users to the defamatory content, in a similar way to the person pointing to the placard in Hird v Wood, or the letter referring to the defamatory speech in Lawrence v Newberry. Although a user must make a decision to access the hyperlinked material, and must ‘click’ on the hyperlink, less effort is required than tracking down a speech referred to in a newspaper letter. Even if a hyperlink is not interpreted as directing users to linked content, however, a hyperlink provides access to other Web material. It is perhaps arguable that a content provider that includes a hyperlink could be regarded as a distributor of the linked material, and therefore liable for publishing the material.

Whether a blogger would be liable for defamatory material in a linked post or site, and for that matter for defamatory material written by commenters in her comment box facility, may depend on whether she can avail herself of the defence of innocent dissemination. The EFA article referred to earlier sums up the common law position in this area succinctly:

The common law defence of innocent dissemination has historically applied to re-distributors such as newsagents, booksellers, libraries, etc. An ISP or ICH may also be able to rely on the common law defence of innocent dissemination in circumstances where they did not know that the publication was defamatory or likely to contain defamatory matter and their absence of knowledge was not due to negligence on their part.

Whether the common law defence of innocent dissemination can be relied upon by ISPs/ICHs has not yet been determined by Australian courts.

The 1996 High Court decision in Thompson v Australian Capital Television Pty Ltd suggested the defence may apply to “mere distributors of electronic material”. However, this may depend on whether courts determine that an ISP/ICH’s part in publishing Internet content created by other persons is the same as that of a television station that broadcasts television programs created by others. Television stations broadcast a limited number of programs per day at selected times and according to the decision in Thompson v Australian Capital Television Pty Ltd are expected to check the content prior to broadcast. However, requiring ISPs/ICHs to check the content of thousands, in some cases millions, of items published via their systems each day without their specific knowledge is a significantly different matter.

However, the new uniform Defamation Act (which now applies in all States and Territories with some minor differences in section numbering – the links are to the NSW Act) creates a codified defence of innocent dissemination:

32 Defence of innocent dissemination

(1) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

(2) For the purposes of subsection (1), a person is a “subordinate distributor” of defamatory matter if the person:

(a) was not the first or primary distributor of the matter, and

(b) was not the author or originator of the matter, and

(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

(3) Without limiting subsection (2) (a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of:

…

(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter,

 A blogger will almost certainly not be able to rely on a defence of innocent dissemination for quoting or linking to posts or articles of whose contents she is aware, unless the defamatory imputations (meanings) are non-obvious. On the other hand, the innocent dissemination defence would probably provide fairly strong protection for general blogroll links, and rather more limited protection against blogger liability for defamatory comment box material. I say “limited” because section 32(1)(c) contains a requirement that “the defendant’s lack of knowledge was not due to any negligence on the part of the defendant”.   A blogger in relation to her commenters  is probably in a position analogous to that of the host of a live radio or TV program with  her guests, and so covered by section 32 (3)(e).   Thatis, she has no effective way of controlling what commenters say on her blog, but does have an effective means to delete defamatory comments by monitoring regularly.

If you don’t bother to check your comment boxes regularly and delete defamatory comments, you are highly unlikely to satisfy that requirement. How frequently you would need to check comment boxes has not as far as I know been the subject of a court decision, but may well depend on the size and nature of your audience, the number and nature of typical daily comments and other similar factors. It might well be that blogs with an aggressive/robust commenting culture (e.g. Tim Blair, Catallaxy, Spin Starts Here) would need to monitor comment boxes more regularly than one with a more genteel (precious?) audience like Club Troppo. My gut feeling is that as a rule of thumb a blogger with a reasonably well read blog and an active commenting community would have difficulty negating negligence (and on normal legal principles the onus would almost certainly fall on the blogger to establish this) unless she checked comment boxes a couple of times per day at least.