Hyperlinking defamatory material a no-go-zone

Hyperlinking defamatory material on your Facebook page, benign as it may sound, could see you charged with defamation. A recent decision of the ACT Supreme Court in Bailey v Bottrill (No 2) [2019] ACTSC 167 warns that we all may only be a few inadvertent clicks away from defamation at any point in time.

In Bailey, the ACT Supreme Court heard an appeal from the ACT Civil and Administrative Tribunal, in which the respondent had brought a claim against the appellant for “sharing” a functioning hyperlink and associated text to her Facebook page that redirected to a YouTube clip containing defamatory material regarding the respondent. The nature of the YouTube clip was clearly defamatory.  It imputed that the respondent was a member of a paedophile group, who used his employment to facilitate paedophilic activities. The appellant argued (unsuccessfully) that she was not liable in defamation as she made no contribution to the hyperlink and associated text, as neither were authored by her.  Accordingly, she argued that her role was no more than “passive” in sharing the link itself.

The Court did not accept the appellant’s submission, and held that the appellant had participated in the publication of the defamatory content on her Facebook page, by providing the hyperlink.  In coming to this decision, Associate Justice McWilliam had regard to the nature of the appellant’s Facebook page, which was likened to a personal ‘noticeboard’, which was always under her control. By extension, Her Honour reasoned that it was the appellant’s conduct, and her conduct alone, that caused the link to appear on the page, such that in providing the link she ‘facilitated direct access to the defamatory material’.[1] Although the appellant did not author the text which appeared under the hyperlink, the combination of the hyperlink and the associated text appearing on her personal page, ‘bespeaks a willingness on the appellant’s part to transport the enticed searcher immediately to the relevant web page on YouTube for more information’,[2] which was deemed to amount to publication of the defamatory content, in and of itself.

This judgment has far reaching consequences for social media users, further extending the ever-growing ambit of defamation law. It is important to realise that the mere act of providing a functioning hyperlink to defamatory content may constitute ‘publication’ in defamation, even if one’s intentions are innocent, as doing so may facilitate direct access to the defamatory material. This decision serves as a grave warning for all social media users to take care when deciding what to share and distribute on their personal social media accounts. Exercise caution and discretion when sharing content on social media, noting that the World Wide Web is only a few clicks away from becoming a world of woe.

If you have run into trouble with social media in your organisation, see this previous article or this one or contact our Litigation and Dispute Resolution Team.

Written by Ian Meagher and Maxine Viertmann.

[1] Bailey v Bottrill (No 2) [2019] ACTSC 167 at [50].

[2] Ibid at [52].