Someone Commented on Your Facebook Post: When Will Online Intermediaries Be Liable as Publishers of Third Party Defamatory Content?

39 Pages Posted: 19 Jun 2017

See all articles by George Morrison

George Morrison

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: September 1, 2016

Abstract

This paper attempts to simplify the liability of online intermediaries as publishers of third party defamatory content that they host. It proposes that due to two significant gaps in the Harmful Digital Communications Act 2015, the law of defamation must be reformed to provide predictable outcomes for intermediaries. The author offers solutions under two headings: the period before an intermediary has knowledge of third party content; and the period after which the intermediary becomes aware of its existence. For the former, this paper proposes that the innocent dissemination defence is reformed to apply to online intermediaries. For the latter, the author asserts that personal and commercial operators should be held to different knowledge standards leading to liability, based on traditional defamation principles. Furthermore, this paper assesses the control that an intermediary might exercise over their content, and attempts to reconcile this with a knowledge-based approach. It also introduces the principle of severance, which European Union and United Kingdom case law apply to define precisely the content for which the intermediary is liable. Lastly, this paper examines how reform has worked in the United Kingdom, before proposing statutory reform to the Defamation Act 1992 in Appendix A.

Keywords: Defamation, Intermediary, Publication, Internet, Harmful Digital Communications Act 2015

JEL Classification: K00, K10, K13, K30

Suggested Citation

Morrison, George, Someone Commented on Your Facebook Post: When Will Online Intermediaries Be Liable as Publishers of Third Party Defamatory Content? (September 1, 2016). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 20/2017. Available at SSRN: https://ssrn.com/abstract=2988866

George Morrison (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

Register to save articles to
your library

Register

Paper statistics

Downloads
52
rank
373,062
Abstract Views
195
PlumX Metrics