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Innocent Dissemination

The defence of innocent dissemination is intended to protect people such as newsagents, booksellers, librarians and internet service providers (ISP) who unwittingly publish defamatory matter without negligence on their part. However, the defence does not stand if the ISP, newsagent etc has the requisite knowledge of the content, however as to exactly what level of knowledge, the law is unclear.

There have been cases that explore the issue of the defence of innocent dissemination. Recent cases have held that an operator of an online search engine can be considered a secondary publisher of defamatory material, even though the operator may not have known that the material was defamatory in nature until it was brought to their attention [see Google Inc v Duffy (2017) 129 SASR 304].

In the case of Defteros v Google LLA [2020] VSC 2019 and the subsequent appeal [2021] VSCA 167 the Court was required to consider the defence of innocent dissemination to the particular facts of the case specifically relating to Google’s knowledge or means of knowledge of the content of the material published by it.

An issue raised in the first instance and again on appeal by Google related to the argument that Google was not well placed to assess whether the particular content was true and Google asserted that it was reasonable for them to rely on their sources, in this case The Age newspaper. On appeal the Court found at [146]:

The question is not whether Google knew or had the means of knowing that it might have a defence to an action brought against it in respect of the defamatory material contained in the matters published by it. Rather, as we have emphasised, the key question is whether Google knew, or ought to have known, of the defamatory material contained in the publications.

Google also sought to rely upon the fact that Mr Defteros had not provided the full URL (web address) of a matter complained of in his notification. The notification however included in clear terms the precise matter published about which he had concerns. Whilst this notification did not comply with Google’s policy, the Court found it was sufficient to identify the defamatory material, hence putting Google on notice as a secondary publisher.

Innocent Dissemination  :  Last Revised: Fri Jul 9th 2021
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