Damages for Online Defamation
Publication of defamatory comments on websites, social media and business networking platforms such as Facebook, Twitter, Instagram and LinkedIn are becoming increasingly common and are causing devastating harm to both personal and business reputation and business losses.
Recent awards of damages by courts for online defamation serve as a warning to all using the internet that care must be taken to ensure that there is a factual basis for what is published. Wilson v Bauer Media (2017), was one of the highest damages awards for defamation in Australia, including aggravated damages of $650,000 and special damages of $3,917,427. However, on appeal by Bauer Media, the Court of Appeal reduced the award of damages for non-economic loss (including aggravated damages) to $600,000 and ruled that Wilson had not made out her claim for special damages.
Individuals who seek to hide their identity by making anonymous posts and using fake names when posting defamatory material online are at risk of being identified by the use of court ordered pre-trial discovery from the social media and telecommunications companies and the use of IT forensic experts.
The following articles provides an update and review of the damages awarded in recent defamation cases and some of the factors taken into account by courts in awarding damages.
Defamation Proceedings Against Search Engine Proprietors – Trkulja v. Google LLC [13 June 2018]
The online dissemination of defamatory material can go viral and result in significant reputational damage to individuals and businesses. Internet search engines such as Google, Bing and Yahoo further disseminate such material on their websites in search results. Search engine proprietors have sought to exclude their liability for publication of defamatory material as a part of search results.
The High Court of Australia in Trkulja v. Google LLC [13 June 2018] cleared the way for defamation proceedings against search engine proprietors. The High Court has confirmed that search engine proprietors will not be relieved from liability from being sued for defamation where search results publish defamatory material.
However, this High Court decision does not remove the practical complexity of dealing with a United States based company, like Google LLC in having defamatory material removed from its websites, taking court proceedings for defamation and enforcing an Australian judgement in the United States, if successful. Google Australia, a related company, has continued to maintain its position that it is not the search engine proprietor or operator, it does not participate in the publication of search results and is not liable for the publication of any of the defamatory search results.
The following article discusses the High Court’s decision in Trkulja v. Google LLC.[13 June 2018]