A recent proceeding issued in New South Wales by a building company against a consumer opinion website is a timely reminder to website owners, operators and administrators of potential liability for publishing defamatory or misleading comments posted by third parties.
Builders Champion Homes, a residential building company operating in the Greater Sydney and Illawarra region, commenced legal proceedings against productreview.com.au for allegedly harmful comments published on the website concerning the 3.75% variation clause in its contracts, triggered by delays. Apparently the proceeding settled prior to being determined by a Court, due to the building company’s reluctance to incur further expenses in conducting the litigation.
Corporations are precluded from bringing claims for defamation (save for “not for profit” organisations or companies that employ less than 10 people). This proceeding focussed on claims under the Australian Consumer Law and is not reported to relate to comments about an individual (a prerequisite to a claim for defamation). It is not difficult to imagine a scenario where comments on online forums could become personal.
Whilst not being the author or originating publisher someone can be held responsible for defamatory content appearing on the internet, either as a primary or subordinate publisher. A recent decision of the Supreme Court of Victoria¹ has usefully summarised the applicable principles:
- To be a primary publisher of defamatory material, it must be alleged and subsequently proven, that the person or entity was intentionally complicit in publication (or failed to take reasonable care to prevent publication), and/or exercised control over the publication.
- Alternatively, to be a subordinate publisher, it must be established that the person or entity acquired knowledge of the relevant publication, and failed to remove it, thereby authorising or ratifying the publication.
To minimise the risk of being held responsible for the comments of others, it is common for owners, operators and administrators to have systems in place to vet the content of posts prior to publication on their website.