5. Defamation and Free Speech

· Facebook defamation

o NewsCore, ‘Student wins Facebook defamation case’ The Daily Telegraph (Sydney), <http://www.dailytelegraph.com.au/lifestyle/student-wins-facebook-defamation-case/story-e6frf00i-1225898160856> at 9 November 2010.

§ This is a British case in which a student, after a falling-out with one of his acquaintances, posted a pornographic image and a defamatory comment on his acquaintance’s Facebook page. The image and comment implied that the acquaintance was a paedophile with homosexual tendencies, neither of which was true. The offender was ordered to do 150 hours of community service by the Stafford County Court, and the defamed person was awarded 10,000 pounds in damages by the London High Court.

o Samantha Healey, ‘Defamation cases multiply from Facebook, Twitter’ (19 September, 2010) The Sunday Mail (Qld) <http://www.couriermail.com.au/news/defamation-cases-multiply-from-facebook-twitter/story-fn5kfsdd-1225925849346> at 5 November 2010.

o Nigel Hunt, ‘Teenager sued over Facebook defamation’ Perth Now (Perth), 21 November 2009 <http://www.perthnow.com.au/news/teenager-sued-over-facebook-defamation/story-e6frg12c-1225801635738> at 9 November 2010.

§ This is an Australian (SA) case. The teenager in question was charged with and convicted of criminal defamation in Adelaide, after he posted defamatory contents about a police officer on Facebook. The relevant SA provision is as follows:

· Criminal Law Consolidation Act 1935 (SA) - Section 257

257— Criminal defamation

(1) A person who, without lawful excuse, publishes defamatory matter concerning another living person—

(a) knowing the matter to be false or being recklessly indifferent as to whether the matter is true or false; and

(b) intending to cause serious harm, or being recklessly indifferent as to whether the publication of the defamatory matter will cause serious harm, to a person (whether the person defamed or not),

is guilty of an offence.

Penalty: Imprisonment for 3 years.

(2) A person charged with an offence against this section has a lawful excuse for the publication of the defamatory matter concerning the other person if the person charged would, having regard only to the circumstances happening before or at the time of the publication, have a defence to an action for damages for defamation if such an action were instituted against him or her by the other person in respect of the publication of the defamatory matter. [...]

§ The NSW equivalent is Crimes Act 1900 (NSW) Section 529.

· Google Suggest (auto-complete) defamation

o This is a French case in which it was alleged that Google Suggest results of a search for the victim’s name showed suggestions for his name plus the words “rapist” and “satanist”. The Tribunal de Grande Instance de Paris convicted Google and Google’s CEO of defamation. Google will appeal as they say they are not actually making the Google Suggest suggestions – they are created by an algorithm.

o See AFP, ‘French court convicts Google and boss of defamation’ (25 September 2010) Google News <http://www.google.com/hostednews/afp/article/ALeqM5gJsoDp_yA1FHODNVS7KbuG0I0fwQ> at 5 November 2010. The page contains a link to the judgment in full (in French).

§ QUESTION: If an algorithm produces text according to what users search for, then is it the users that are making the suggestions? Who is responsible?

· Hotel and restaurant user reviews on sites such as TripAdvisor

o Angela Saurine, ‘Travellers could be sued for hotel rants’ (12 October 2009) News.com.au <http://www.couriermail.com.au/travel/travellers-could-be-sued-for-hotel-rants/story-e6freqwf-1225785663290> at 4 November 2010.

According to a media lawyer at MinterEllison Lawyers, people that post amateur hotel or restaurant reviews on sites such as TripAdvisor or YouTube are at the risk of being sued by the hotel or restaurant for defamation, whichever countries the parties are in. Many of these websites don’t offer their users protection against liability, and if a business of 10 employees or less decides to sue for business defamation (or if an individual employee of a business of any size decides to sue for traditional defamation) it will be difficult for the review writer to prove the truth of their review as a defence. The writer could be subject to multiple defamation laws depending on which countries the review is read in. Even if they didn’t intend the review to ruin the business, intent is irrelevant.

o The definition of “business defamation” has possibly a lower standard of proof (and is therefore easier to establish by plaintiffs) than that of traditional defamation:

Aleksandra Gacic & v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175, per Beazley JA (Handley JA and Ipp JA agreeing):
“(i) Defamation that is alleged on the basis that a person has been injured in their business, trade or profession (business defamation) is distinct from defamation as it is generally understood, in that it does not require proof that the imputation would tend to lower that person in the estimation of right-thinking members of society. It requires only that it be established that that person’s reputation in their trade, profession or other office has been injured.”

-- Milmo P and Rogers W V H (eds), Gatley on Libel & Slander (10th edition)

§ QUESTION: How feasible is it for a hotel (or a sued review website seeking to recover the damages they are ‘indemnified’ for) to track down a commenter who posted a defamatory review? What impact does this have on freedom of speech, especially if ‘business defamation’ is easier to establish than traditional defamation?

· The Usenet case: Pre-Web 2.0 precedent for the responsibility of ISPs to remove defamatory content from a forum or thread, where the poster cannot be identified.

o Godfrey v. Demon Internet Limited [1999] EWHC QB 244

The court found that an ISP can be sued for libel, and that any transmission by a service provider of a defamatory posting constituted a publication under defamation law. The ISP subsequently removed any Usenet post immediately after a complaint was made about it, which attracted the criticism of free speech advocates, who described the case’s resulting restriction on freedom as ‘disproportionate’.

§ QUESTION(S): Is this a precursor to Web 2.0 ISP liability for defamation? Usenet was a network, separate from the World Wide Web, using a separate protocol (not http), on which people placed articles and comments. Subjects were divided into channels, threads and sub-threads. Users subscribed to channels through their ISP, which might not offer subscriptions to all the channels existing. Did the subscription process make Usenet significantly different to blogs, forums, and social networking pages used nowadays, in terms of how quickly information can be distributed? That is, would it have been possible for Usenet content (including defamatory content) to “go viral”, as YouTube (etc) content does? How does this ‘precedent’ stand up to the iiNet case?