Defamation law has long recognised that responsibility for published material can extend beyond the original author. However, the way that principle is applied has become more complex in an online environment where content can be surfaced, shared and accessed through multiple channels.
In New South Wales, the Defamation Act 2005 (NSW) provides the framework for how these issues are assessed, including when a person or entity may be considered a publisher of defamatory material. If a person or organisation is found liable, the consequences can be significant including compensation and, in some cases, Court orders to stop the material from being published further.
As information moves across search engines, websites and digital platforms, courts are increasingly considering whether those involved in making that material available can be treated as publishers. This includes looking at the role of intermediaries such as online platforms and service providers and the extent of their involvement.
A central issue is where the line is drawn between active participation and passive facilitation. In determining liability, Courts will look closely at whether a party has played a role in communicating the material to a third party or whether they have simply provided the means by which it can be accessed.
Google LLC v Defteros
The High Court considered these issues in Google LLC v Defteros, where proceedings were brought directly against Google in relation to its search results.
A criminal lawyer commenced defamation proceedings after a search of his name returned a link to a news article suggesting he was associated with organised crime. While the article itself had been published by a third party, the claim focused on whether Google could be held responsible for displaying a hyperlink to that material.
The central question was whether providing a hyperlink in search results amounts to ‘publication’ for the purposes of defamation law.
The High Court held that Google was not a publisher in these circumstances, characterising its role as facilitating access to content created by others rather than participating in its communication.
In reaching this conclusion, the majority drew a clear distinction between facilitating access to material and actively communicating it. The provision of a hyperlink was seen as a reference point directing users to content, rather than an act of publication itself.
The Court also rejected the argument that Google had ‘ratified’ the content by continuing to display the link after becoming aware of it, emphasising that mere knowledge of defamatory material does not, on its own, establish publication.
As a result, the claim against Google failed. The decision reinforces the distinction between making material accessible and communicating it, with liability turning on the level of involvement in bringing the content to the attention of a third party.
Trkulja v Google LLC
The question of liability arising from search results was also considered in Trkulja v Google LLC, where proceedings were brought against Google in relation to both its search and image results.
The plaintiff alleged that a search of his name returned results, including images, that suggested a connection with criminal activity. Unlike Defteros, the claim did not turn on a simple hyperlink to third-party content but on the way the search results themselves were compiled and presented to users.
The High Court found that it was open to a jury to conclude that the search results carried a defamatory meaning. In particular, the combination of images and search results could suggest a connection that did not in fact exist.
Importantly, the Court rejected the argument that Google could not be a publisher in these circumstances. Its role in producing and displaying the search results was enough to support a finding that it had participated in communicating the material.
A key distinction from Defteros was the more active role played by Google in assembling and presenting the search results. Rather than merely directing users to third-party content, the search results themselves were capable of conveying a defamatory meaning.
While the matter ultimately settled before trial, the decision makes clear that search engine results are not immune from scrutiny and may lead to liability depending on how the content is presented and understood.
Together with Defteros, this highlights that liability will turn not on the type of platform involved, but on the role it plays in communicating the material and the impression created for the user.
Managing risk in online communications
These decisions highlight how liability can arise in practice. Steps to manage that risk may include:
- Considering the source and accuracy of material before linking to or sharing it
- Understanding the extent of control over third-party content, including how it is displayed
- Reviewing how search results, website content or digital platforms present information to users
- Responding appropriately where potentially defamatory material is identified.
For platform operators and publishers, this extends to implementing clear internal review processes, maintaining accessible complaint mechanisms and taking prompt action where concerns are raised. A structured approach to identifying and responding to potentially defamatory material can assist in reducing exposure, particularly where issues arise after publication.
As digital communication continues to evolve, the legal concept of publication is being applied in increasingly complex ways. What may appear to be a passive role can, in some circumstances, attract legal responsibility.
How online defamation can affect your business
For businesses, reputation risk arises in two distinct ways:
- Where the business is the subject of a harmful review or post; and
- Where the business (or its staff) becomes involved in publishing or responding to that content.
Most commonly, businesses encounter reputational harm through online reviews, social media posts, comments and other user-generated content. A single post can move quickly across platforms and, depending on how it is handled, may expose different parties to liability.
When your business suffers reputational harm
In this scenario, a third party publishes content about your business that is alleged to be false and damaging to your reputation.
Who is responsible? Responsibility will depend on the level of involvement:
- The original author of a review or post is typically the primary publisher and may be directly liable if the content causes reputational harm.
- The platform (eg Google or Facebook) may or may not be liable depending on its role in presenting the content, as illustrated in Defteros and Trkulja.
- The business, in this case, is the party seeking to protect its reputation and may consider options such as removal requests or legal action.
When your response may create risk
A separate issue arises where a business, or someone acting on its behalf, engages with the content in a way that may amount to republication.
Even where the business is the party affected, it may create its own exposure if it:
- Republishes the content (for example, sharing or amplifying it);
- Responds in a way that repeats or adopts the harmful statement; or
- Exercises a level of control over content (such as moderating or curating reviews) but fails to act once aware of an issue.
In these circumstances, the business or its staff member may be treated as a publisher of the material, not just the subject of it.
This is where the distinction between passive facilitation and active participation becomes critical.
What to do if your business receives a damaging review or post
How a business responds is often just as important as the content itself.
1. Do not respond impulsively A reactive response, particularly one that repeats or escalates the allegation, can increase exposure. Even attempting to defend the business may inadvertently republish the material.
2. Assess whether the content is legally defamatory Not all negative reviews are defamatory or otherwise give rights to a legal claim. For a claim to arise, the content must:
- Identify the business
- Be communicated to others and
- Damage reputation in a way recognised by law.
An honest opinion, even if strongly expressed, may not meet this threshold.
3. Preserve evidence Take screenshots and retain records of the content, including dates, usernames and URLs. This can be critical if the material is later removed.
4. Consider a removal request Most platforms have processes for reporting defamatory or inappropriate content. Prompt action can often result in removal without escalation.
5. Identify the publisher (if possible) Where the content is serious, it may be appropriate to seek legal advice regarding identification of the author and potential next steps.
6. Seek legal advice before escalating Options may include issuing a concerns notice under defamation legislation, requesting retraction or pursuing further action. The appropriate course will depend on the severity and context. One of the key considerations is whether the business is owned by individuals or a company – a company must meet certain criteria to sue for defamation, otherwise it will need to seek advice on other avenues to make a claim.
Managing risk proactively
For many businesses, the greater risk lies not in a single incident but in how online content is managed over time, particularly where staff are responsible for responding to reviews or social media commentary.
Practical steps include:
Implementing clear social media and review response policies
- Training staff on how to respond to online commentary, including when not to engage
- Monitoring platforms where your business is discussed
- Ensuring that responses are measured, factual and non-escalatory.
Where businesses host or manage user-generated content (for example, testimonials or community forums), having clear moderation processes in place can be critical.
Practical implications
Defamation law continues to adapt to the realities of online communication, with courts taking a closer look at how information is made available and who is involved in that process.
For businesses, this means that reputation risk is no longer confined to traditional media. It sits across search results, reviews, social platforms and the way in which organisations choose to engage with them.
If you require advice on defamation, media law or managing legal risk in online communications, the team at Aubrey Brown Lawyers can assist. Contact us on (02) 4350 3333 or visit aubreybrown.com.au to arrange an appointment.
