On Thursday, 4th July 2019, the Supreme Court of New South Wales granted an urgent injunction to a Sydney business owner who sought the removal of defamatory reviews posted on his Google business page.
The application followed the man’s repeated requests for the search engine juggernaut to remove the reviews, which he said were untrue and damaging to his business.
The court also ordered Google to prohibit any further reviews from being posted on the man’s Google business page for a period of time, and to suppress the details of the business owner, his business, the accounts from which the reviews were posted and the content of the reviews.
As the offending reviews were still there the morning after court, the man’s lawyers returned to court and Justice David Davies directed the Registrar to charge Google Australia – which is California-based Google LLC’s subsidiary – with contempt of court.
The reviews were removed over the weekend.
Search engine and social media companies have traditionally been reluctant to remove defamatory content, even after it has been reported several times and details have been provided regarding the basis for the removal requests.
The Supreme Court’s decision may place some pressure on the company’s s to act swiftly to remove defamatory content.
A spokesperson for Google Australia said on Saturday, “when we receive court orders we take them seriously and respond in a timely manner”.
However, the company’s failure to quickly comply with the orders of the Supreme Court is likely to see its representatives being hauled before the court on criminal charges.
Contempt of court in NSW
Those who engage in conduct that interferes with or impedes the administration of justice, or undermines the authority, dignity or performance of the court may be subject to the common law offence of contempt of court; which has no prescribed maximum penalty.
Contempt may involve acts within the courtroom, the publication of material which could prejudice the course of justice, or ignoring orders of the court.
Conduct which may amount to contempt of court includes:
- Disobeying court orders
- Swearing at and abusing the magistrate or judge
- Filming witnesses in order to intimidate them
- Taking photos of jury members or court proceedings
- Refusing to take an oath, or give evidence
- To persist in being noisy in court or keep interrupting the proceedings
- Statements about a judge’s conduct or their decisions that are influenced by factors other than evidence in court
- Destroying documents that are likely to be required in court proceedings
Only time will tell whether Google will face the consequences of its conduct.
The law on defamation in New South Wales
The Defamation Act 2005 (NSW) is essentially replicated in all Australian jurisdictions.
For defamation to be established, three distinct components need to be proved on the balance of probabilities.
Material must be published (which includes orally communicated) to at least one person other than the party who was allegedly defamed.
The publication can occur orally or in writing, whether in print, by way of digital communication or otherwise, but it must be comprehensible.
The material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so.
3. Defamatory meaning
The material must be ‘defamatory’ to the ‘ordinary, reasonable’ person, which means it must be likely to:
- cause the person to be shunned, shamed or avoided by others;
- adversely affect the reputation of the person in the minds of right-thinking members of society; or
- damage to the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in his or her trade, business or profession.
Defences to civil defamation
Part 4, Division 2 of the Defamation Act lists the statutory defences, which section 24 makes clear are additional to any others available under the law.
The statutory defences are:
2. Contextual truth
3. Absolute privilege
4. Public documents
5. Fair reporting of proceedings of public concern
6. Qualified privilege
7. Honest opinion
8. Innocent dissemination
Section 14B of the Limitation Act 1969 (NSW) provides that ‘an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.’
However, section 56A(2) allows a court to extend that period to up to 3 years from the date of publication, ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication’.
Parties that cannot be defamed
Under section 9 of the Defamation Act, companies with 10 or more employees or which are formed for something other than financial gain cannot sue for defamation.
Section 10 precludes anyone from asserting, continuing or enforcing a cause of action for defamation in respect of a deceased person, or from suing the estate of a deceased person.
Offers to make amends
Part 3, Division 1 of the Act sets out a range of rules for resolving civil defamation disputes without litigation.
The part provides mechanisms for offering to make amends without resorting to legal proceedings, and makes clear that any such offers, or admissions made therein, are not admissible in any ensuing litigation.