Clifford Gouldson Lawyers

Online Comments: Dangers for individuals and business

Print Version

22/01/2016

The law often struggles to keep pace with changes in technology and social behaviour.  That has certainly been the case for defamation law.  But recently we have seen that the Courts are ready, willing and able to pursue issues in defamation that arise in cyberspace. 

For most, what is done on the internet will not be an issue, but the following cases illustrate that defamatory comments, even by others, can land you in hot water.
 

McEloney v Massey

Mr McEloney, an accountant, claimed he was defamed by Ms Massey who had made certain statements on a Facebook page called ‘Poms in Perth, Australia’.  Ms Massey had referred to Mr McEloney as unprofessional, rude and not worth $550, and indicated that he overcharged for his services.  Ms Massey relied on the defences of justification (i.e. truth) and honest opinion.

Judge Anette Schoombee found that given Ms Massey’s comments were made on Facebook where users “often write in half sentences, with abbreviation, keep their comments brief and use colloquial language”, the comments did not carry the same weight as those made on, say, the front page of a newspaper.  Her Honour also held that emails between the two parties demonstrated Mr McEloney’s abrasive and rude demeanour.

In the Court’s eyes, Ms Massey’s comments were not an attempt at revenge, but merely an expression by Ms Massey in the public’s interest.

Despite finding in Ms Massey’s favour, the Court stated that members or administrators of Facebook pages who defame service providers are not immune from defamation liability, and that not all published statements qualify as honest opinions.   
 
Duffy v Google Inc

Dr Janice Duffy consulted a psychic website for advice on a current relationship.  Apparently, her relationship had failed despite a representation of prosperity from ‘Kasamba Psychics’.

Two articles were then published about Dr Duffy on the ‘Ripoff Report’ website.  This website allows anyone to post reports that directly intend to shame others.  The two articles contained defamatory imputations in that they alleged Dr Duffy behaves in a criminal or dishonest manner.

Dr Duffy became aware of the defamatory articles after searching for her name through Google.  She notified Google of the content and asked Google to remove it from the results that appear when her name is searched.  Google declined.

A year later, Dr Duffy, when again searching her name in Google, became aware that Google’s ‘autocomplete’ function presented the alternative search terms: ‘Janice Duffy Psychic Stalker’.  Dr Duffy notified Google who again refused to do anything about it. 

Dr Duffy then sued Google claiming that the display of the words: ‘Janice Duffy Psychic Stalker’ amounted to publication of defamatory material.  Google denied such allegations by relying on the defamation defences of innocent dissemination, qualified privilege, justification and contextual truth.

At trial, witnesses attested to seeing a link to the ‘Ripoff Reports’ website and the troublesome autocomplete facility when using Google to search for Dr Duffy.  This satisfied the Court that Google had published the defamatory material to a third party.  The content itself was deemed defamatory and the Court rejected most of Google’s defences, particularly innocent dissemination.  Innocent dissemination may only be pleaded where the publishing party had no knowledge of the defamatory content and that the party’s failure to detect the content was not due to negligence.

It was crucial to Dr Duffy’s success that she had requested the removal of the defamatory content without compliance.
 
Von Marburg v Aldred & Another 

Roland von Marburg alleged that he was defamed on a Facebook page by Ethan Aldred and Pieter Mourik.

Judge John Dixon compared a physical wall and a Facebook wall to emphasise the importance of the ‘administrator’ role on Facebook pages:

“A Facebook ‘wall’ may feature multi-layered privacy settings, and complex systems governing each individual’s capacity to view, add, alter, or exchange content on the ‘wall.’  An individual, such as the administrator of the ‘wall’, will have greater control over the content on the wall than a third party viewing or adding to that content.”

His Honour highlighted that an administrator of a Facebook page is responsible for the removal of any defamatory comments on that page.  Mr Mourik was the administrator of the Facebook page in question and was found to have known the substance and content of the defamatory publications about Mr von Marburg.  The Court held that Mr Mourik had sufficient opportunity to remove the publications and by not removing them within a reasonable time, he approved, ratified and adopted the publications.
 
Trkulja v Google Inc

Milorad Trkulja claimed that Google defamed him through its autocomplete function and image results.  Essentially, Mr Trkulja alleged that Google associated his name with search terms like “Melbourne criminal underworld”.

Google pleaded that due to the way its search engine operates, it could not be the ‘publisher’ of the alleged defamatory content and therefore holds immunity from defamation actions.  The Court rejected this argument because Google’s search engine was founded and maintained by its employees at the company’s direction.

The Court found that the defamatory publications, which associated Mr Trkulja with convicted criminals, were a direct product of Google’s search engine operation.  The Court decided that the defence of innocent dissemination was not available to Google given its direct involvement with the defamatory publications.
 
How this may affect you or your business

The first case suggests that critical yet fair comments about a trader by a consumer on Facebook will be taken in their context and not amount to defamation as long as the consumer simply expresses his/her view on the service provided by the trader and does not personally attack the trader.  From the trader’s perspective, it is important that you are polite and courteous, and treat consumers with respect even if they have complained about your work.

The second, third and fourth cases serve as a wake-up call to not only Google, but to all businesses and individuals that moderate websites or pages on which the public can publish information (i.e. forums, blogs, reviews, Facebook, Instagram, LinkedIn, Twitter, etc).  Such moderators should regularly monitor the activity on their page and act swiftly when a request to remove potentially defamatory content is received.

It is important to realise that how you and others conduct yourself and themselves online can give rise to legal rights.  If you or your business are concerned about something that has been said online, then please don’t hesitate to contact Clifford Gouldson Lawyers’ Litigation and Dispute Resolution team.

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