Trolling, or the posting of inflammatory and offensive comments on the internet, has in extreme cases been linked with emotional distress and suicidal behaviour.

While civil action against both the authors of such comments and the operators of websites that publish them has been relatively unheard of, this may change in the near future.

In his recent decision, Smith DCJ of the Rockhampton District Court has opened the gates for further consideration of whether authors and publishers may be held liable to compensate victims of online identity theft and abuse.

Doe v Yahoo!7 Pty Ltd and Anor; Wright v Pagett and Ors 1

In 2009, The Observer, a news source available online, ran articles featuring Ms Jane Doe and noting she suffered from an autoimmune disease. These articles included photographs of Ms Doe.

In March 2010, Mr Wright observed that a profile with Ms Doe’s name and photograph had been fraudulently created. Further, the person who was using the fake profile with Ms Doe’s name was frequently posting offensive and lewd comments.

The person who used the fake profile then changed the username to various other offensive names, and names implicating Mr Wright, but kept the photograph of Ms Doe and her name.

In response to the comments, Mr Wright repeatedly contacted Yahoo! from March 2010 to advise them the profile was fake and request that the comments be removed. Mr Wright also advised Yahoo! that the comments were causing distress to him and his family.

In addition to the fake profile, Mr Wright received harassing emails from a ymail account hosted by Yahoo!, the username of which was the same as Mr Wright’s actual email address hosted at hotkey.com.au.

One of the emails referenced a dispute between Mr Wright and Mr Pagett over the alleged unlawful selling of Mr Wright’s books. Mr Wright once again notified Yahoo! that he was being harassed by Mr Pagett and stated that Mr Pagett was using Yahoo! to attack his family.

In or about July 2010, Yahoo! confirmed there was a connection between the email accounts used to send harassing emails to Mr Wright and the profiles created to post the offensive comments on the website. The evidence indicated that at this time (some four months after the initial complaint), Yahoo! had taken steps to deactivate Mr Pagett’s account, however some comments remained on the site until February 2011.

The Actions

Ms Doe sought to bring a claim against Yahoo!7 for:

  1. Breach of Confidence;
  2. Negligence “as per the Civil Liability Act 2003
  3. Misleading conduct as per the Fair Trading Act 1989 (Qld);
  4. Misleading conduct as per the Customer and Consumer Act 2010 [sic]
  5. and
  6. Intentional infliction of emotional distress;

Mr Wright sought to bring claims against both Mr Pagett and Yahoo! for:

  1. Negligence “as per the Civil Liability Act 2003
  2. Misleading conduct as per the Fair Trading Act 1989 (Qld);
  3. Misleading conduct as per the Customer and Consumer Act 2010 [sic];
  4. Intentional infliction of emotional distress; and
  5. Invasion of privacy.

Yahoo! submitted that there was insufficient evidence to ground any of the causes of action above, and sought orders that the claims be struck out.

Conclusions

His Honour concluded the following about the prospects of success of each action:

  • Breach of confidence

While the photograph and information about Ms Doe had already been published and thus may have lost its confidentiality, it may be argued that the misuse of each was a breach of confidence in that the information was converted into something which was offensive without Ms Doe’s consent.

As breach of confidence is a developing area of law, His Honour, without wishing to express any concluded view, held it would be inappropriate to strike out an action on this basis.

  • Negligence

Unsurprisingly, the purported action for negligence “as per the Civil Liability Act 2003” could not stand as the Civil Liability Act 2003 (Qld) does not create or confer any cause of civil action2. However, His Honour held that based on the authority of Doe v Australian Broadcasting Corporation & Ors3, a case in negligence may stand against Yahoo! as publisher, if properly pleaded. His Honour referred to the finding that there was a duty of care owed by a publisher not to cause psychiatric injury as a result of negligent publication of information.

  • Intentional infliction of emotional distress

Referring to Grosse v Purvis4 and Giller v Procopets5, His Honour held that Mr Wright and Ms Doe would have a civil cause of action against Mr Pagett for damages for intentional infliction of emotional distress. However, due to insufficient evidence that the conduct of Yahoo! was intentional, the action against Yahoo! on this basis was dismissed.

  • Breach of Privacy

Despite the fact that in a previous proceeding, Koppenol DCJ struck out Ms Doe’s claim for breach of privacy, His Honour held that Mr Wright’s claim on the same basis should not be struck out. He noted that his decision only applied to Mr Wright, and that if Ms Doe wished to challenge the decision of Koppenol DCJ she would need to do so in the Court of Appeal.

His Honour noted that he would be very hesitant to strike out a cause of action where the law is developing and is unclear. In addition, he noted that breach of privacy as a cause of action has been recognized internationally in the United States, Canada and New Zealand.

With respect to Australian authorities, while a new tort for invasion of privacy was not recognized in ABC v Lenah Game Meats6, His Honour noted that such a tort was recognized in two subsequent decisions, Grosse v Purvis7, and Doe v Australian Broadcasting Corporation & Ors8 neither of which were appealed.

  • Actions pursuant to the Fair Trading Act 1989 (Qld) and Competition and Consumer Act 2010 (Cth)

His Honour held that while the conduct of Yahoo! may be held to be negligent, it could not be held to be misleading or deceptive for various reasons including that Yahoo! did not initially know of the offensive conduct. Further, when Yahoo! became aware of the conduct, it took steps to do something about it. Accordingly, His Honour dismissed the claims made on these bases.

  • The application of the Personal Injuries Proceedings Act 2002 (Qld)

With respect to the mechanics of bringing such claims, His Honour noted that claiming damages for psychiatric injury resulting from the misuse of information on the internet would fall within the application of the Personal Injuries Proceedings Act 2002 (Qld) which would need to be complied with prior to the issuing of proceedings.

Effects of Decision

The decision of Smith DCJ has provided an opportunity for civil causes of action based on misuse of personal information to be considered.

While a case against the authors of offensive material may be comparatively more clear, whether operators of websites will be held liable for material posted by users is a difficult question. Given the success of defences based on intermediary status in suits against internet service providers regarding illegal downloading, the same approach may be applied to websites and the publishing of offensive material. This may be particularly likely if the operator of the website is unaware the material has been published.

It will be interesting to observe whether more matters of this nature will be pursued to further the development of this relatively new area of law. As evidenced by the difficulties Smith DCJ encountered in evaluating the Statements of Claim in this matter, it is best for solicitors to be engaged from start to ensure both coherence of legal argument and compliance with pre-court requirements.

A copy of the decision may be accessed here.