Here’s a curly question. Who is liable in Australia for defamatory postings on a blog? Is it the blogger, the author, the ISP, or a combination of these?

The author’s position is simple: if they post a defamatory comment on a blog they are liable. But in practice, their identity may be unknown and the preferred targets are those who own and control the blog or have the potentially deeper pockets – the blog host or ISP. The smattering of blogsuits in the common law world suggests ISPs may have an escape route but what about here in Australia?

This month, Sir Martin Sorrell launched the UK’s first defamation case against a blog, claiming two former colleagues defamed him and another colleague by calling them a ‘mad dwarf and nympho schizo’ respectively in a posting on a blog. Sorrell is not pursuing the ISP, presumably because ISPs are considered passive providers by the UK courts and are protected from liability by the UK Defamation Act, as they are in the USA by the Communications Decency Act.

In Australia, we have an untested provision deep down in the Commonwealth Broadcasting Services Act which protects internet content hosts from liability for hosting internet content, where they were not aware of the nature of the content. ‘Internet content host’ is defined very broadly, certainly broadly enough to include ISPs and potentially bloggers.

The provision suggests that, where an internet content host has been notified it is hosting defamatory material, and fails to remove the material within a reasonable amount of time, it could be liable for publication, if the material is found to be defamatory. In practice, it would be difficult for the owner of a blog site to argue they were not aware of the nature of the content on their blog.

Also, because this is the world wide web, while publication may occur in Australia (when a person opens and reads a posting on a blog) many ISPs will not be within the reach of the Australian courts as they are located overseas, particularly in the USA, where ISPs are protected.

The only blog defamation decision in Australia so far is Kaplan v Go Daddy, where the court ordered a disgruntled Hunter Holden customer to take down his blog because the name of the blog and its posts may have constituted the tort of injurious falsehood (an action similar to defamation).

The blogger argued that he was only responsible for the name of the blog and the heading ‘Hunter Holden Sucks’. He denied posting any of the blog reader comments. The court said that even if he was not the author of the posts, there was still a ‘serious question to be tried’ as to whether he published the postings.

The court made no finding on liability as the case appears to have settled but it did hint that establishing and maintaining a site and inviting disparaging comments may be enough to make a blogger liable for another’s comments.

Plaintiffs may think twice before seeking satisfaction from individual bloggers, because they are generally impecunious (the likes of the The Homeless Guy come to mind) and it may only fuel the fire. But that is no comfort for deep pocket mainstream Australian publishers that have set up blogs to keep up with Generation Y.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey