The NSW Attorney-General has released the long-awaited statutory review of the Defamation Act 2005 (NSW), recommending that consideration be given to certain changes to the Model Defamation Provisions that form the basis for the National Uniform Defamation Law. The High Court's decision in Trkulja v Google LLC  HCA 25 (13 June 2018), allowing a defamation action regarding search engine results to proceed against Google, highlights the importance of getting the policy settings right in the digital context. Managing Associate Alison Beaumer reports.
The Review recommends that consideration be given to possible changes to the Model Defamation Provisions, including:
- the introduction of a 'single publication rule', rather than the current rule that a separate cause of action arises each time a matter is published (or, in the digital context, downloaded). The current rule has the effect of nullifying the one-year limitation period where material remains on the internet;
- whether a 'serious harm' test should be introduced as a threshold matter to deter trivial, vexatious or spurious claims;
- whether the innocent dissemination defence requires amendment, to better reflect the operation of ISPs, internet content hosts and search engines;
- the introduction of a specific safe harbour provision and clear takedown procedures for digital publishers; and
- enabling corporations to sue for defamation. At present, they are excluded from bringing an action for defamation unless they are not for profit or employ fewer than 10 people. While this is out of step with other comparable jurisdictions, the Review suggests it remains appropriate.
Mr Trkulja alleged that he was defamed by Google's publication of certain Google search results. The search results included images of him mixed with images of convicted Melbourne criminals and certain text suggested by autocomplete. Mr Trkulja alleged that the search results conveyed defamatory imputations that he was associated with the Melbourne criminal underworld.
Google's application for summary dismissal was dismissed at first instance. Google's appeal succeeded, with the Court of Appeal holding that the content was incapable of being defamatory. It held that it would have been apparent to an ordinary reasonable person using the Google search engine that Google made no contribution to the search results that conveyed a connection between Mr Trkulja and criminality.
The High Court overturned this decision, holding that it was not an appropriate case for summary dismissal. It would be open to a jury to conclude that an ordinary reasonable person using the Google search engine would interpret the search results in the manner alleged. Google's liability in the circumstances may turn more on whether it can bring itself within the defence of innocent dissemination than on whether the content of what has been published has the capacity to defame.
The NSW Review has been referred to the Council of Attorneys-General for further consideration of possible amendments to the Model Defamation Provisions. The Trkulja case will be of ongoing interest to lawmakers. With the High Court having allowed the case to proceed, it is likely to raise the scope of the innocent dissemination defence and the potential need for legislative amendment if Google is unable to meet the requirements of that defence. We will keep you updated on developments.