Hyperlink at your own peril

18 July 2019

The case concerns an appeal brought by Ms Katrina Bailey, who was found liable for the defamation of David Bottrill by placing a functioning hyperlink on her Facebook page which connected recipients to a YouTube page plainly defamatory of Mr Bottrill.

In Issue

  • Whether the appellant was a publisher within the meaning of the tort of defamation in causing a hyperlink and a covering text to be posted on her Facebook page.

The Background

The defamatory material underlying the hearings and appeal to the Supreme Court was located on YouTube. It had two components, namely a video and accompanying text posted to YouTube by a Teresa Lieshout.

The YouTube material contained imputations that Mr Bottrill (the respondent) was a member of a paedophile group which kills and tortures victims, and that he used his employment to facilitate the entry into Australia of minors for paedophilia by Muslim men.

The defamatory nature of the material posted on YouTube was confirmed in earlier hearings.

Ms Bailey, the appellant, had a Facebook page which contained a functioning hyperlink to the YouTube material (which permitted direct access when a viewer clicked on the hyperlink).

The Decision at Trial

The matter commenced at first instance before Senior Member Donohoe SC in the ACT Administrative Tribunal. The Senior Member was unable to identify an intention on the part of the appellant to assist in the publication, but went on to find that the evidence before him satisfied the test of publication by omission.

That decision was appealed to the Appeal Tribunal of the ACT Civil and Administrative Tribunal. In applying the reasoning in the recent decisions of Visscher and Duffy, the Appeal Tribunal held the fact of the appellant establishing the hyperlink to the YouTube material was a positive act of participation in its publication.

The Issues on Appeal

The only issue on appeal was whether the appellant was a 'publisher' within the meaning of the tort of defamation.

The Decision on Appeal

The Supreme Court in its reasons identified that personal 'participation' in a publication is shown when a person is in some degree an accessory to the communication of defamatory material. It held that participation in the publication of defamatory material must be deliberate in the sense of intentionally lending assistance. It confirmed that any person who knowingly participates in the communication of defamatory material, in whatever degree, is a publisher and is therefore exposed to potential liability for defamation.

The Supreme Court found on the evidence of the text accompanying the hyperlink, which identified the respondent as 'now confessed life member' of a notorious group, was a sufficient snippet or context to entice a searcher to click on the hyperlink.

The Court found that the combination of the hyperlink and the text spoke of a willingness, on the appellant’s part, to transport the viewer immediately to the relevant web page on YouTube for more information.

In dismissing the appeal, the Court held in the circumstances that the appellant was both a primary and secondary participant in the publication, and that there was no error in the Appeal Tribunal finding that the conduct of the appellant was positive participation in the publication of defamatory material.

Implications for you

Social media users should be careful about linking potentially defamatory material with their personal web pages. The mere linking of material may amount to publication within the meaning of the tort of defamation, which may give rise to liability for defamation.

Bailey v Bottrill (No 2) [2019] ACTSC 167

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