By Mitch Clarke

Consider how many electronic Internet links you click each day on your mobile or laptop. You presumably clicked on a hyperlink to arrive at this very article. The Internet and linked content are reciprocally essential; the benefits of one cannot be realised without the other. Their invention and use has advanced how we communicate, share content, and find information. Prohibiting the use of linking content would be antithetical to the Internet. Unfortunately, Trkulja v Google [2017] HCATrans 129 could have this effect.

Granted special leave in June, Trkulja presents two questions to the High Court. The first is procedural, predominantly as a result of the plaintiff initially being self-represented. The second is about whether a person who collated third party posts and linked-content on the Internet can be held liable if the content is defamatory. Generally speaking, the contentious issues in Trkulja and similar cases involve the liability of an Internet company for hyperlinking, collecting, collating, or reproducing content posted by third parties on the Internet.

There was a possibility that the second question would not be addressed and instead referred back to the Victorian Court of Appeal. I use past tense (‘was a possibility’) because of the October decision on a similar question from the Full Court of the South Australian Supreme Court in Google v Duffy. The Duffy judgment begs — and hopefully necessitates — a more critical adjudication from the High Court on the question of indexed and re-communicated Internet content. Without comment, there could be an unfortunate impairment — however unintended — on the operation of the Internet in Australia.

Precedent Spells Trouble for ‘Publication’

A defamation claim requires three elements: a ‘publication’, ‘identification’ of a third party, and ‘defamatory’ content about that third party. Without the presence of each element, there is no claim to be made. Much of the Australian case law has focused on the specificity of information reproduced on a webpage via hyperlinks, and the inclusive degree of such needed to constitute the re-publication of defamatory content underlying the hyperlink. However, it is the operation of hyperlinks and the associated reproduced content constituting a ‘publication’ which is deserving of more scrutiny.

‘Publication’ is not defined in the uniform legislation which is how we wind up with common law principled cases like Trkulja. Continue reading →