LIABILITY & RESPONSIBILITY FOR INTERNET INTERMEDIARIES

DEFAMATION LAWS IN AUSTRALIA:

LIABILITY & RESPONSIBILITY FOR INTERNET INTERMEDIARIES

UDHAIYAH PRIYA NESASUNDARAM

Introduction

Defaming the good reputation of someone is considered one of the worst immoral acts done to a person.[1] Thankfully, on 15 December 2005, the Australian Federal Attorney-General proclaimed that all six Australian States had adopted defamation laws with balancing the protection of a person or an organizations reputation by awarding damages, while at the same time keeping the rights to the truth, honest opinion, and innocent dissemination.[2] The six legislations of Australia’s defamation laws are Defamation Act 2005 (Qld),[3]  Defamation Act 2005 (NSW),[4]  Defamation Act 2005 (SA),[5] Defamation Act 2005 (WA),[6] Defamation Act 2005 (Vic)[7] and Defamation Act 2005 (Tas).[8] However, with the failure of the internet intermediaries to facilitate defamatory contents which pass through or is hosted on their network, the issue of defamation reemerges again and again.

The laws concerning Defamations in Australia have been derived from various sources such as the Common Law, False Light Laws, International Treaties, Rule of Law, and Civil law.[9]     

Under Common Law, to comprise Defamation, a claim should generally be false and probably been made to somebody to jeopardize their repute.[10] Common law purviews additionally recognize “Slender” knew as spoken defamation and “Libel,” known as defamation in other media, for example, publicized pictures or published words.[11]     

Highlighting ‘libel defamations,’ the rule is that anyone in the chain of publication can be libel and held responsible for defamatory allegations that are published. This broad principal also applies to the internet.[12]  

The people who publish the defamatory statements on the internet can indeed be held libel but so too can the internet intermediaries who helped them publish those communications.[13] This includes the content host that host web pages or the websites that provide forums for people to post comments, can all be held to be publishers under defamation law and are all potentially primarily libel for the dissemination of defamatory information.[14]

The article first recognizes the term ‘Internet Intermediaries ‘and discusses the exertions of international treaties has made. Next, it identifies the difference between the two concepts of ‘liability’ and ‘responsibility’ for internet intermediaries. The essay later would rekindle towards Common Law and examples several case studies around the world subjecting laws on publication applied to internet intermediaries. The essay additionally concentrates the prospects of Australian Defamation law. The essay further broadens the five-model established on the level of legal responsibilities do online intermediaries bear under defamatory content which passes through or is hosted on their network and analysis what level of responsibility should they bear. Finally, this essay considers the position in Australia, United States and United Kingdom regarding internet intermediary responsibilities for defamatory content and recommend lastly for changes to the law.

The Difference Between Liabilities and Responsibilities for Internet Intermediaries 

To protect an individual from libel defamation, individuals have turned to defamation law for protection.[15]  However, various issues arise, primarily based on the fact that the laws of defamation in Australia do not express much about matters related to the internet or the internet intermediaries.[16]

In recent years, there had been active exertions of international treaties that benefits to protect people from breaching the Defamation laws.

Based on the conditions of article 17 of the United Nations International Covenant on Civil and Political Rights (ICCPR)[17] ; nobody should be subjected to unlawful interference or arbitrary with home, family, privacy or correspondence, nor to illegitimate accusations on his honor and reputation, as well everybody is privileged to the protection of the law against such defamatory attacks or interference.  

In Australia, Defamation Law signifies intermediaries are under solid lawful obligations, supported by the severe threat of financial liability, to respond to complaints about published defamatory content. [18]

Even though, the world engages in different forms of legislation and treaties that helps defamation laws and benefits defamed victims.  Yet, in the opinion of Dr. Monica Horton, to further know about defamation that involves with internet intermediaries, it is important for one to understand the difference between ‘Liability’ and ‘Responsibilities’ for internet intermediaries.[19]  

The term ‘Liability for Internet Intermediaries’ subject’s internet intermediaries can be fined, sanctioned or even asked to remove content that is primarily defaming or illegal and is mostly governed by the process of law. [20]   

The term ‘Responsibility for Internet Intermediaries’ subjects as new and intriguing policy terms indicating that the intermediaries are self-motivated and someway acts upon its initiatives.[21]     

Responsibilities for internet intermediaries additionally stands as a proactive process and will engage in monitoring, scanning, blocking, filtering and automated removals when passes through or is hosted on their network, under its own rules, terms, and conditions.[22]    

According to United Nations Educational, Scientific and Cultural Organization (UNESCO), [23]  and the Organization for Economic Co-Operation and Development (OECD), [24] Internet Intermediaries subjects as corporations that facilitate matters that deal with the internet. The matters include defamatory contents that are published or pass through on their network.

The concept of ‘Internet intermediaries’ refers to Internet Service Providers (ISP), Website Hosts, Search Engines. Organizations Related to Social Media, E-Commerce Intermediaries, Internet Portals, Publishing Platforms, Internet Payment Systems, Participative Networking Platforms, Internet Broadcasting, Data Processing Providers and Domain Name Registrars, can all be responsible for offensive contents placed by third-parties.[25]     

It has been argued by Dr. Marcelo Thompson.[26] Minimum two issues had developed regarding the examining online defamation matters and how it becomes applicable in various law jurisdiction.[27]  

One, the principal results in offenders being found to be editors where people would not think them properly responsible to ground responsibility. [28]     

Two, the law is ambiguous and unclear. Courts sometimes conflate various lines of principle such as concerning secondary publication and publication by error.[29]   

It’s substantial to point that the result is evolving case law that is occasionally immoral and not suitable for handling problem of internet intermediary legal responsibilities' in defamation.[30]

Furthermore, Article 11 of the Australian Law Reform Commission (ALRC) points out that the law takes little account of technology advances, changed social conditions, and the growth of countrywide awareness or nationwide communication. [31]

It’s considerable that in present time, the courts from Australia and other countries have started seeking other alternatives.[32] This includes following the guidance of judicial precedent structure to solve matters regarding internet intermediaries on defamatory contents.

Article 11 of ALRC additionally claims that defamatory matter differs among jurisdictions of Australia. In certain jurisdictions, the judge-made rules of Common Law relate. The laws are multifaceted in each state of Australia.[33]    

Even with so many legislatures try to protect an individual from defamation, Yet, the issue of defamation has, time and again, resurfaces behalf on the failures of the internet intermediaries to monitor defamatory contents which hosted or passes through on their network. 

Thus, countries worldwide have shown different context while applying the Common law in resolving these difficulties of imposing legal responsibilities for the internet intermediaries. [34]  

In Australia, the issue of imposing liabilities of defamation on internet intermediaries can be traced back in the case of Dow Jones v Gutnick & Co Inc (2002). [35]  The High Court decided that actual knowledge not be required in every case to defeat innocent dissemination.   It was observed in the case of Trkulja v Google Inc & Google Australia Pty Ltd [2012],[36] that a defamatory comment was published about Mr. Trkulja in a search engine result by Google. However, it was argued that the search engine results are not the creation of human; therefore, there was no intention. Google argued that they're not the publisher by omission in this case. The argument was rejected stating that the fact that Google adopted third-party contents was sufficient for the facts of this case. On the other hand, it lacks knowledge about content, constituting adoption of contents concerning inaction cannot be proved.   

In New Zealand, the context of liabilities on internet intermediaries was considered in Murray v Wishart [2014]. [37] The issue involved in this case was to determine whether a publisher by omission is required to satisfy the publisher by omission test or an intention or knowledge test. The New Zealand Court of Appeal judged that based on a publication by omission. It also rejected the ground that a person cannot be a publisher by omission without doing an act of trespass. Actual knowledge is required to establish a publisher by omission.  

In the United Kingdom, the issue of defamation was first emerged in the case of Godfrey v Demon Internet [1999], [38]when an unknown person published as the plaintiff on a newsgroup site. The Demon Internet was initially sued as they could remove the defamatory post. It was found that Demon Internet knew the post before it was published. The court, therefore, denied the defense which was available to them under Section 1 of the Defamation Act, 1996.[39]  In the case of Bunt v Tilley [2006],[40] it was argued that internet service providers are just the system and not the publishers; therefore, liability for defamation cannot be imposed upon them. 

In the United States, the Common law on publication did not receive much importance, as in 1990 statutes were enacted to regulate the issues relating to publication.[41] However, some essential cases from the past can be referred to in this situation to consider the response of America in applying the law of publication to the intermediaries. In the case of Cubby v CompuServe Inc (1991), [42]  the Common law of publication was applied in deciding the defamatory contents published by an internet provider while hosting a news forum online. The Court decided that CompuServe cannot be held liable as they had given the responsibility for editorial control of the publication to other entity.  The Stratton Oakmont, Inc v Prodigy Services Co (1995) [43]  decision led to the enactment of Section 230 of the Communication Decency Act.[44] The act safeguarded the intermediaries from their liability towards for a content published by the third party. 

In Canada, the concept of liability for third-party content can be related in the case of Carter v BC Federation of Foster Parents Assn (2005). [45]   The issue of whether the content found in an internet chat room can make the newsletter liable. The British Columbia Court of Appeal decided that the defendant cannot be held responsible as he was not the publisher of the relevant defamatory content. He had merely invited people to visit the site and had no control over that contents of the activities of the forum.  In the Crookes v Newton [2011] case, [46] the Supreme Court of Canada decided that including a hyperlink does not imply that the contents were published in that site. 

In Hong Kong, there was a different aspect regarding proving publication by omission. In the case of Oriental Press Group Ltd 7 Others v Fevaworks Solution [2013], [47]  the court used the act of trespass as a test to decide publication by omission. In this case, a defamatory content was posted in an internet discussion forum. An objection was raised to remove the content, however, which was removed after it came to notice of the defendants. The hosts of the forum were not a publisher by omission as they were effectively involved in conveying information.  

Besides, there are plenty more other countries examples that take actions under common law related to the defamation legal responsibilities for internet intermediaries. 

It’s considerable that in present-days giving way that the world has undergone many changes; Still, there are more than a few occurrences which the difficulty of protecting individuals from defamation resurfaces over and over again. 

This pertinent example includes how Internet Intermediaries who fail of its responsibilities to remove defamatory content posted by users when they have the possible capacity to do so. 

A case example, Trkulja v Yahoo! Inc & Anor [2012],[48] the plaintiff was Milorad Trkulja, the first defendant was Yahoo! Inc. LLC and the second defendant were Yahoo!7 Pty Ltd. The issue is relating to responsibilities of search engines for publication of defamatory material. The court provided that the first defendant made the defamatory publication and it adversely affected the reputation of the plaintiff who had a good reputation in the community. The defamatory material remained available on the website of Yahoo for a long period without being removed by the first defendant which caused significant grief and distress to the plaintiff; thus, the court ruled that the plaintiff is entitled todamages of $225000.

It is a reflection of this which counts that only when the impact of the infringement of defamation law would be so severe that it would classify within the meaning of the act would it be measured.

Therefore, it is significant to note that although there are several arrangements not only in Australia but in the world that try to overcome the matter of defamation. Yet, there are numerous other performances in which the sentiments of the defamed victims are upset; this includes the internet intermediaries who failed to facilitate defamatory matters which passes through or is hosted on their network.

Five liability models of legal responsibilities of Online intermediaries 

It’s established that internet users sue internet intermediaries like website hosts, service providers, social media entities and the search engines for defamatory contents posted by third parties.[49]    

There are numerous ways to discover responsibility that online intermediaries should bear.[50]  Following section 1 of Defamation Act 1996 (UK),[51] the term responsibility also expresses as ‘blameworthiness.’   

In the same way, under Australian Defamation Law, the term ‘publish,’ defines ‘publicly aware’ and bear ‘legal responsibility’ of the intermediaries who fail to remove defamatory content posted by individuals when they have the possible capacity to do so. [52] This should also apply to internet intermediaries. 

It is argued by Dr. Nicholas Pagelley. [53] The online publication in Australia that can be claimed to be ‘defamatory' involves jeopardizing the defamed victim reputation; or else, the defamatory content results in the defamed victim being rejected and ignored by the society; or otherwise, to discover the society to be disgusted, disliked, and tease the defamed victim.[54]

The Australian Law Reform Commission (ALRC) recognizes the ‘Primary Publishers’ like author, writer, editors, and publishers of the offensive publications where applicants only take legal actions against the one that’s recognized as the primary publishers.[55]

 Also, the ‘Secondary Publishers’ like printers, buyers, sellers, promoters, and advertisers that can be sued, in a case where it is not adequately logical for the applicant to take legal actions against the primary publishers.[56]

Under ALRC, both of these categories of publishers could hold responsible for defamatory publication on the internet.[57]   

ALRC addresses, generally applicants can take legal action one or more than one primary publishers with the proper way to pay damages and compensation.[58]   

Because the offensive remarks are created by the contributors in the programs and not in comments, the producers may not be held legally responsible.[59] However, it is not always the case. The producers are legally responsible as trade publishers of the defamation.[60]

A Western Australian case example is Rindos v Hardwick [1994].[61] The Supreme Court of Western Australia ruled it is the first defamation matter of Australia concerning posting on the Internet bulletin board where the damage of $40,000 was awarded.  

Although Australia implied freedom of political communication in their constitution, article 19 of Australian Human Rights Commission (AHRC) claims Australia Defamation Law does not most of the time encourages free speech. [62]Even when spoken on the internet.[63]

The Courts are in the position to force an individual to remove the defamatory content from the internet or pay damages or compensations to the defamed plaintiff for the harm done to their reputation. [64] Failure to obey may well lead to prosecution for contempt. [65]   

Nonetheless, under s 25,[66]  s 26,[67] s 31,[68]  and s 32[69]  of the Defamation Act 2005 (Qld), [70]  there are certain defenses in the Defamation laws. Similar defenses can be found in all Australian States and Territories, under Division II, section 24 – 33 of Defamation act 2005.[71]    

Some of the defenses include statements which are, “justification, fair comments or the truth” , “complete rights connects to an event not to the speaker like during the time of parliamentary proceeding, the judicial proceeding”, “administrative statement or communication between partners”, “competent benefits like the fair and correct report of procedures of parliaments”, “judicial actions or the procedures, public meetings concerning subject of public interest or public concern”, “permission such as where the claimant specifically or impliedly consents to the publication of the specific charge”, “inconsequentiality like where the conditions or events of the publication were minor to the scope that the individual defamed was not likely to take damages”,  “Guiltless broadcasting like applicable to re-distributors or re-publishers such as bookseller or newsagents, involving potentially to internet intermediaries” and “Innocent Dissemination where it protects those individuals that are several steps detached from the publication of the defamatory statements and lacks in knowledge is the root of this defense”.[72]    

The circumstances in which the above defenses can be appropriate vary among the constitution of Australia. [73] For instance, truth alone isn’t a defense in all jurisdictions. In some, the defendant should also prove that the publication of the correct statements or charge was made for the benefits of general people or relates to the case of public interest.[74]

Equally, the court will not be easily fooled and will distinguish the difference of factual commentary and defamatory content.[75]   

Referring to the case study article of ‘Internet Intermediaries Liability in Defamation.’.[76] Law professors, Emily Laidlaw, and Hilary Young have identified five liability models that are established to state the legal responsibilities of online intermediaries which enforced in different parts of the world.[77] These five liability models are Strict Liability, Broad Immunity, Safe Harbours’, Generalist, And Notice-&-Notice.[78]      

First, countries like China or Thailand forces the ‘Strict Liability Model,’ that acts as a watchdog of contents by intermediaries, worsening which they face legal concerns like criminal punishments, extraction of business license and so forth. [79]     

Second, countries like the United Kingdom or Australia forces the ‘Safe Harbour Model,’ as it gives intermediaries with infinite immunity from responsibility.[80] It is good to consider Notice & Takedown (NTD) wherein intermediaries are provided safe harbours from responsibility as long as it eliminates contents or restricts access to contents, which are at the top position of illegal materials to be taken down. [81]  The Electronic Commerce Directive (ECD) renders comprehensive immunity for channels like internet service providers and to the reduced scope intermediary that supply contents but needs the host to restrict access to contents on real experience or consciousness that it is not legal. It is recognized as a horizontal strategy. Frequently, as the circumstance of safe harbour s’, mediators are motivated to state illegal contents by the service with Corporate Social Responsibility (CSR), practical solution or same code of practice and memorandum of knowledge.[82]  

Third, countries like the United States provides ‘Broad Immunity Model’ to intermediaries for the content, which passes through or is hosted in their network. [83]  In evidence under section 230 of the Communications Decency Act (CDA)[84] in the USA delivers protection to providers of interactive communication services for utmost illegal content. Nonetheless, the only omission is communications privacy, federal criminal and intellectual property rights.    

Fourth, countries like Canada forces ‘Notice-&-Notice Model,’ which implemented with Copyright Act, where the intermediary is obligatory to forward a notice of copyright infringement electronically to the user linked with the Information Content Provider (ICP) discourse declared in the notice.[85] The jeopardy to the intermediary is statutory compensations between $5,000-10,000 for failure to forward the notice. The purpose is to discourage copyright infringement, showing that a rights holder’s original decision, after forwarding the notice, is taking legal actions contrary to the user for copyright infringement. [86]   

Fifth, a large number of countries together with countries in South America and Africa continents forces ‘Generalist Model’ for intermediary liability in defamation, which addresses there is no specific intermediary's legal responsibility rule.[87] Generalist model does not have special intermediaries’ regime; rather it’s assigned against civil and criminal responsibilities as well as risk liabilities. The reason they contribute directly to the unlawful activity or they can control or gets the financial benefit. [88]

These models require the intermediary’s responsibility to monitor the publishing contents and to forward an electronic notice for violation of defamation laws to a linked user and immunes them from liability under certain conditions.[89]   

It is noted by Barrister Jaani Riordan, the responsibilities and liability of the online intermediaries are not given any special consideration of the law.[90] Preferably in most countries including Australia, are treated under civil and criminal defamation responsibilities.[91] This can be categorized under Generalist Model.

Moreover, Imposing responsibilities on internet intermediaries includes their power to scrutinize and monitor the objectionable contents, and the internet intermediaries need to ensure compliance with the international human rights aspect.[92]

Conferring to Article 19 of the Universal Declaration of Human Rights 1948 (UDHR), [93] freedom of expression of the users is guaranteed. The Human Rights Council, 2011 included internet-communications in the freedom of expression. It also stated that restriction should be imposed on specified contents rather than on a general basis.[94]   

Yet, that is not the case in Australia. It was argued by Tom Wilson that the Australia Human Rights framework in most cases does not encourage freedom of expression, but it does support factual commentary, honest opinion and innocent dissemination [95]that should include the internet.

Also, most of these models are tested to recognize large structure at work and the tension between them.[96]

New questions additionally arise, whether the Uniform Resource Locator (URL) of the internet intermediaries can be found guilty in defamation law.

In the New South Wales case of Visscher v Maritime Union of Australia (No 6) [2014].[97] The plaintiff was Timothy Visscher, and the defendant was the Maritime Union of Australia. The judgment was given in New South Wale Supreme Court. The issue was whether an article’s online hyperlink to another defamatory article could be considered as a publication. The court provided that the hyperlink not constitute as a publication because it did not repeat defamatory material. The hyperlink merely identifies the location of the defamatory article.

A similar judgment was given in Rana v Google Australia Pty Ltd [2013],[98] in which the court provided that automated search results of a defamatory article not constitute as defamation. The issue is whether Google is liable for a third party’s defamatory website which is shown in its search results. The court provided its judgment based on Trkulja v Yahoo!;[99]stating Google was not the publisher of the defamatory content and the results were shown automatically. 

Nevertheless, the South Australian case of Duffy v Google Inc [2015],[100] the judgment is opposite to the cases above. The court held Google liable for displaying defamatory content. The plaintiff Dr. Janice Margaret Duffy filed a suit for Defamation Act 2005 (SA)[101] against the first defendant Google Inc. and the second defendant Google Australia Pty Ltd. The issue is whether Google is liable for the automatic defamatory content shown in its results. The court held the defendants responsible for the defamatory content of hyperlinks and snippets which were shown in search results for the plaintiff’s name and the defamatory content of search which autocompletes her search result. Conclusively, this case imposed defamatory liability on internet intermediaries which provide their service based on automatic algorithms. 

It’s arguable that internet intermediaries cannot always be measured as publishers as they only permit the information to be conveyed to the public. So, Intermediaries cannot be held responsible for every defamatory content published by third parties. Therefore, it measured that intermediaries are just used as an instrument to convey content to others. 

It’s the reflection from the above cases makes individuals queries where the Australian laws originally relay regarding the legal responsibilities of Internet intermediaries for defamatory content.

Henceforth, it's noteworthy to say that, if there is legislation created principally to address matters regarding the internet and the legal responsibilities of the internet intermediaries under defamation laws, the laws might be more transparent in Australia.

Comparisons of Online Defamation Actions & Recommendation for Change of Laws.

In Australia, the internet intermediaries might not reliably play a proper functioning job in editing or selecting the content to be published on the internet.[102] Still, the internet intermediaries are responsible for monitoring and sending notice that content which passes through or hosted on their network is probably going to be defamatory.[103]

Practically speaking, this implies Australian intermediaries have a solid commitment to expel content that is conceivably defamatory once the publication on the internet is aware. [104] This is considerably dissimilar to the situation in other jurisdictions, for instance, in the United States, an intermediary is mostly not taken to be a publisher of defamatory content published by a third-individual. [105]

However, according to Dr. Matthew Collins, the law of publication cannot be effectively applied to the intermediaries.[106] The intentions of internet intermediaries’ subjects on consideration for making them liable.[107] They are not to be responsible for the publication of third parties if they were not aware of the intention of the content and did not remove it.[108]     

It’s conventional that in Australia, the foremost boundary to internet intermediary legal responsibilities for defamation is the Innocent Dissemination defense, applied when internet intermediaries don’t and shouldn’t be reasonably acknowledged as the content published on the internet is defamatory.

Likewise, Australian Defamation laws, Australia’s Racial Discrimination Act 1975 (Cth),[109] forces intermediaries who deliver a third-party content forum could hold responsible when those comments amount to vilification.

However, Section 18C of the Racial Discrimination Act,[110] only concentrates defamatory contents that’s reasonably offend, humiliate, insult, irritate, threaten or intimidate a group or an individual where that act is done based by skin color, race, national or ethnic.

A pertinent case example is the Silberberg v Builders Collective of Australia Inc (2007),[111] the applicant was Ron Silberberg, and the respondent was the Builders Collective of Australia Inc and the second respondent was Ken Buckley. The issue was whether the failure of the first respondent to remove offensive posting violates section 18C of the Racial Discrimination Act 1975 (Cth).[112] The internet intermediary was the Builders Collective which was operating a discussion form on its website. The court provided that the second respondent is liable under section 18C for making the offensive post. The court also granted that the first respondent had the knowledge and it failed to remove the post. However, it was not proved that the post was not removed because of the Jewish race or ethnicity of the applicant based on which the case against the first respondent was dismissed.

A further case, Clarke v Nationwide News [2012].[113] The applicant is Natalie Clarke, and the respondent is Nationwide News ‘the Sunday Times.’ The issue was whether the respondent is liable for vilifying racial comments posted online by a reader about the death of 10 aboriginal boys under section 18C of the Racial Discrimination Act 1975 (Cth),[114] which prohibits on saying or doing unlawful things on the basis of race. The court ruled that news website is liable because it actively sought comments and decide whether to publish or modify them and grant award of $12000.  

It’s substantial to point that the internet intermediaries such as the respondent that have effective control of their services can be held liable if they have sufficient knowledge of any legal violation.

Additionally, the Australia Broadcasting Service Act 1992 (Cth),[115] also forces AHRC responsible for the expansion of classification board and supervises complaints such as defamatory content, in a co-regulatory agenda through the development of industry codes of practice permitted under Australian Communication and Media Authority (ACMA).[116]

The Broadcasting Service Act,[117] also shows that applicant could take legal actions against the interviewees making the remarks. As for the company of production and broadcaster are listed as the trade publisher, placing them all as primary publishers.   

Law professors, Emily Laidlaw, and Hilary Yong had opinionated that Internet intermediaries in the modern era can be liable for content posted by the third party.[118]  As aforementioned models like strict liability, broad immunity, safe harbours, generalist and notice-and-notice works to identify and resolve the issue of imposing responsibility on the internet intermediaries.[119]  

Concerning Australia, there is no legislation dealing exactly with defamation on the Internet or the Internet Intermediaries.[120] Australia moreover focuses on civil and criminal defamation responsibilities.[121] Consequently, the generalist model applies in Australia.  

It is noted by Lawyer Elizabeth Johnson, the criminal prosecution in Australia for defamation is exceptional.[122]However, it is modified related to responsibility and defenses in Australia.[123]

The difference between United Kingdom defamation law and United States defamation law can seem unimportant, but they are progressively significant in moving and internationally united world. [124] The most significant cause to be alert to the difference in both countries under defamation law is that claimant approachable British law can have a frightening influence on free speech in America.[125]   

The United Kingdom, has Defamation Act 1996 (UK) [126] and uses the broader context of safe harbours models for internet intermediaries’ liabilities. [127]  The UK implemented this model in the E-Commerce Regulation 2002. Article 12-15 of the regulation provides a safe Harbours to the information society services, which acts as a host of content. [128]  

Article 12 is the defense to conduits which did not initiate the transmission of the information. [129]  The websites which are reported to have infringed the intellectual property law, are blocked with the help of injunction in the United Kingdom.  

Article 13 requires a caching intermediary to remove content if at the time of caching the contents he obtains a knowledge or order from the Court to take down the content. [130]   

Article 14 provides a clear explanation of liability for hosts, as they are mostly held liable for any unlawful third-party contents. [131]  Article 14 disabled the immunity of a host if he was aware that certain illegal consequences might arise from a content. It has explained that host of contents like Facebook, Twitters are the platforms to post and not create content.  

Article 15 relieves an intermediary from an obligation to monitor information provided in their services in some instances.[132]   

In Karim v Newsquest Media Group Ltd [2009], [133]  the protection was received by the host even though they could moderate the comments which were posted. The European Commission (EC) explained that an intermediary obtains an actual knowledge from a court order or a notice.  

The term ‘Host’ does not simply refer to storing third-party content. [134] Hosts of contents sometimes refer to the platform used by the third party for interactions. It makes the contents available and accessible to the users. ‘Knowledge’ in this aspect refers to the knowledge about any apparent illegal activities. 

In the UK the aspect of knowledge is not limited to what is mentioned in Regulation 19 of the E-Commerce Regulations, somewhat it is extended to the meaning provided in the Defamation Act. Liability can be imposed on any unlawfulness and not only for the defamatory statement.[135]  

Knowledge automatically relates to the issue of ‘notice,’ for which there can be no uniform regulation. [136] It refers to notify the intermediaries to fix any illegal content. There is an issue in deciding the speed to remove the content from the internet. The Pritchard v Van Nes (2016), [137]   the Court ordered the objectionable object to be removed immediately.   

In R (British Telecommunication plc) v Secretary of State [2011], [138]  Article 15 was applied, that explained and removed the obligation of monitoring from the intermediaries. The Court determined that British Telecommunication have ‘No Obligation to Monitor,’ and the role was for the copyright holder. However, the issue to defer the content monitoring and blocking the content is subject to consideration. 

The AY v Facebook (Ireland) Ltd & Ores [2016], [139] was a case based on a similar context. Facebook removed a pornographic photo of a 14-year-old, but the picture was reposted on Facebook soon. A suit had been filed against Facebook by the girl for failure to prevent misuse of information and to cause a breach of data protection. 

The United States of America,’ however plays by the rule of Communication Decency Act 1996 (US), [140]  of the objectionable online contents. Section 230 of the Communications Decency Act, [141] has provided immunity to intermediaries, and at 2010, 17.2% of the claims under Section 230 were for alleged defamatory content and out of which almost 2/3 of the allegation was dismissed.   

Section 230 of ‘Communications Decency Act’[142] has given the intermediaries a conditional immunity from liability. The primary objective of it was to monitor pornographic content. The endeavors were to promote corporate social responsibility of the intermediaries, on the other hand, providing immunity to them.  

‘Section 230’ has categorized the intermediaries into three namely, online hosts, communications conduits and search engines. It has included publishers, conduits, and distributors and imposed liabilities on them. However, it can provide greater protection to the intermediaries from third-party content. The protection extends to an intermediary who has refused to remove content even after being asked by an author of that content to be taken down.[143]  

Nevertheless, this is not ultimate protection but is subject to ‘Limitation.’ A plaintiff may not be able to claim if the defendant is merely the user or provider of interactive computer service, or another information content provider provides the objectionable content.

The difference between an intermediary and an interactive service provider is subjected to be considered in different cases. While deciding the case of Housing Council of San Fernando Valley v Roomates.com LLC (2008), [144]  the Court established that if a website is used to develop illegal content, it shall not get the benefit from Section 230.   

There has been some proposal made to ‘Amend Section 230’ of Communications Decency Act. There is a need to amend the section to reflect the decision of the Roommates case to remove the immunities of the intermediaries who had encouraged to post unlawful contents. This section should also be made unavailable to those who have sufficient knowledge about a defamatory content.[145]  

‘Digital Millennium Copyright Act of 1998 (DMCA)’[146] has provided safe Harbours to the service providers. Section 512 (i) of the Act has made a condition for the service providers to receive the protection to have a policy for terminating services of the repeated copyright infringers. [147] It provides safe Harbours to a service provider who did not have actual knowledge about the infringing content under Section 512 (c)(1)(B).[148]

From the overall discussion, it can be settled that compared to Australia and the United Kingdom; the United States has made the needed endeavors to address the issue to determine the liabilities of internet intermediaries in defamatory content published by third parties. The Communications Decency Act and the Digital Millennium Copyright Act has positively recognized the problem and protected them. However, the protection given to the intermediaries are not unilateral in the US but are subject to limitation. 

It’s significance to point that in the modern era of internet, the intermediaries like internet service providers, search engines, social media organizations, and the website hosts can be held responsible for any defamatory content posted on the internet by the third parties under the law of defamation. 

It’s considerable that Intermediaries possess little knowledge about the legal aspects of defamation and its consequences. They do not have the ‘competence to identify’ a statement to be defamatory. 

Therefore, they should not be made responsible for acting as an arbitrator to consider the fact that whether content should be published or removed from the internet. 

The intermediaries should be ‘encouraged to remove defamatory contents’ from the internet.   However, the intermediaries are not given with the power to act as the sensor, yet they can regulate the contents being published on the internet, as they can act faster than the process followed by courts in this case. They should maintain a procedure for controlling and monitoring the complaints received by them for defamation. [149]  

The ‘law regarding technology’ needs to be neutral. It has been observed that internet users stream violating contents rather than posting it. In such a case, removal of contents is not possible. In this aspect, the Australian High Court rejected the regulation on a publication of contents in the case of Gutnick v Dow Jones & Co Inc (2002). [150] The Court observed that specific rules could not be made to regulate publication on the internet.

At the same time, ‘strict regulation on internet publication can curtail the freedom of speech’ of a person.  A law on publication can become a threat to the innocent publication that is not related with causing defamation. [151]

However, this principle does not remove all the liabilities of intermediaries, but it should be regulated in a certain way to avoid a threat to the freedom of speech and expression. In a case where the primary publishers are not able to be identified, the intermediaries are not to be made liable for defamatory content. 

If there is a ‘secondary publisher who is responsible for the content,’ the intermediaries cannot deny providing any remedy to the plaintiff. [152] Though section 26 of the Defamation Act 2013 (UK) [153] rejected to hear a case where a primary publisher cannot be held liable for the act of secondary publisher, the rules were reconstructed in Crookes v Newton [2011]. [154] It was settled that it would provide unnecessary immunity to the secondary publisher. For regulation, a strict ‘Statutory Reform’ is needed. 

Specific recommendations on responsibilities for internet intermediaries to change the law would help in protecting the plaintiffs. [155]    The ‘law should be modified’ in a way to maintain the balance ‘to impose liability on the secondary publisher.’ [156]  The publication of secondary publisher is not adequate to cause defamation to a person as they don't possess the same knowledge about the perspective for the reason the content was published.[157] This does not protect the publisher who has intentionally published the content. It is considered that the primary publisher is responsible for preventing such publication.

The intermediaries should not be responsible for failing or omitting to remove a questionable content. [158]  This power shall make them unable to take down any content regardless of the injury to reputation.[159] The law of defamation should be able to address ‘the liability of the defendant who was not initially responsible’ for making such content and failed to remove them. [160] Publishers are required to hold an adequate understanding of the contents they are publishing. 

The court has the power to determine the matter regarding what is ‘intentionally conveyed’ and resolve it. [161] A careless publication by a person does not automatically make them a publisher. Although the person was negligent, the test should be based on the facts that he did not take part in causing injury to reputation intentionally. [162]

However, the person can acquire vicarious liability for such actions. A defendant should not be deemed an intention in causing defamation if he had no control over the conveyed content. [163]

It is recommended to ‘Codify the Obligations of Intermediaries’ to control the complaints received from the party about a defamatory content.  

It’s Reflection of this that the Common law is not sufficient to regulate the obligations of the intermediaries. 

Thus, it's momentous to note that the intermediaries should act by codified law like Australia’s Copyright Act 1965 (Cth) to resolve the matter.

Conclusion

As per the above analysis, the issue of liability and responsibility for internet intermediary for defamatory content is an area of growing ethical and legal concern. It can be concluded that the courts of Australia face the complex query when understanding the defamation laws. The defamation law is still not clear about when somebody may be liable for the acts of the unconnected third person. A few recommendations for change law are additionally provided in the essay. Consequently, although attempts are taken worldwide. Still, very little has been discussed in connection to the responsibilities for internet intermediaries of online defamation content.