The service was lax, the lamb was undercooked, you feel you didn't receive value for your meal and leave the restaurant reeling after the maitre d' smiles at you and says, 'Please come again soon!'. You rush home, turn on the laptop and log onto deliciousfeedfback.net (Delicious*) to tell the world what you think of Barney's Newtown (Barney's*). And boy do you sock it to them:
The staff are lazy! The lamb was raw and the restaurant looks like a brothel! 0/10Barney's might give a second thought to suing a customer, but let's imagine it really wants to. You've got no money, so that leaves the cashed-up Delicious for Barney's to go after. The question comes to mind: is Delicious publishing defamatory material?
Assuming Barney's Newtown has capacity to sue for defamation or injurious falsehood, either in its own right or in the name of its proprietors (for damage to business reputation), a key issue is whether Delicious exercises any control over its user generated content.
In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74, the ACCC brought contempt of court proceedings against Allergy Pathway, alleging that it had breached previous undertakings given to the Court in respect of misleading or deceptive conduct.
Members of the public had posted misleading testimonials on Allergy Pathway’s Facebook wall, which, if placed there by Allergy Pathway, would render it liable for contempt. Finkelstein J held (at 33) that while Allergy Pathway was not responsible for the initial publication of the testimonials:
Where does the Allergy Pathways case leave Delicious in the context of your review of Barney's? The case suggests that once Delicious is put on notice of offending content, it becomes much harder to deny responsibility for continued publication or rely on any of the defences available to it.
... it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials. In any event it is clear that it caused them to continue to be published from the time it became aware of their existence, which is enough to put Allergy Pathway in breach of … its undertaking.
Of course, the Allergy Pathways case is factually unique and was the subject of a different set of legal principles (namely, those pertaining to contempt of court). However, the issue of publication is present in both scenarios and is also an element of the tort of defamation.
In defending any action for defamation, Delicious would have a range of defences available to it, including innocent dissemination. In this regard, the question would arise, when was Delicious put on notice of the defamatory material? Facts relevant to this question would include the level of control Delicious exercise over its user generated content, for example, whether a Delicious employee reviews the content before it is published, or whether posts that instantly appear on the site are subsequently reviewed and vetted by Delicious.
Also of relevance is the fact that Delicious's primary objective is to provide listings of restaurants located in metropolitan Australian cities and invite reviews of those restaurants from Delicious readers. Because it invites third party restaurant reviews, Delicious may be considered by a court to have the ability to exercise editorial control in respect of those reviews.
In the event that Delicious cannot successfully rely on the innocent dissemination defence, liability will follow if it is proven that Delicious had knowledge of the defamatory material and failed to remove the material.
Perhaps the subject of a later blog article is section 91 of Schedule 5 to the Broadcasting Services Act 1992 (Cth) (BSA), a statutory defence available to internet content hosts (broadly defined to include internet service providers, and website owners and operators). Section 91 of the BSA states that any law of a State or Territory (not including matters primarily governed by Commonwealth law, such as copyright), and any rule of common law or equity, has no operation to the extent that it would have the effect of:
- subjecting an internet content host to liability for hosting unlawful internet content of which it was unaware; or
- requiring the host to monitor, make enquiries about or keep records of internet content that it hosts.
There is no case law that has considered the scope of section 91 in the context of a defamation claim, and while the defence is available to be relied on, its legal status remains uncertain. This is because while Schedule 5 of the BSA deals exclusively with the classification of internet content, section 91 appears to be far broader in its application.
With the explosion of review websites like eatability, TripAdvisor, yourrestaurants and the interactive online media sites of news publishers, individuals have found their voice and they're broadcasting it 24/7. Websites that invite user generated content must carefully consider to what extent they will monitor and moderate that content, and what action they will take when they are put on notice about potentially wrongful, infringing or tortious content.
*Delicious and Barney's are fictitious entities
*Delicious and Barney's are fictitious entities
Partner: Paul Kallenbach
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