Dynamic Business

Breach of privacy
In respect of damages for the publication of private information, Australian law does not yet fully recognise an individual’s right to privacy. However, such a right may well be legislated in the next few years.

Just a few months after the Mathew Firsht case, the Australian Law Reform Commission (ALRC) published Media Briefing Note 10: “A statutory cause of action for serious invasions of privacy: getting the balance right”.

In it, the ALRC recommends the creation of a statutory cause of action for a “serious invasion of privacy”, including where:

• there has been an interference with an individual’s home or family life;
• an individual has been subjected to unauthorised surveillance;
• an individual’s correspondence or private communication has been interfered with; or
• sensitive facts about an individual’s private life have been disclosed.

If such a statutory cause of action is created in Australia, then it is conceivable that a person whose personal details are published (on Facebook or elsewhere) without their permission could maintain an action for breach of privacy. Whether any publication would constitute a “serious breach of privacy” and therefore entitle a person to damages pursuant to the proposed ALRC reforms, will of course depend upon the precise wording of the legislation and its interpretation in the Australian courts.

Liability of companies operating websites
Mathew Firsht sued only the individual who authored the offending material published on Facebook.

But what about Facebook itself? Could it have been sued? And could a company in Australia be sued over material appearing on its website but authored by others? What about material that your company’s website provides links to? Like most areas of the law, there are no clear-cut answers.

In one case, Kaplan v Go Daddy, a disgruntled motorist established a website called “hunterholdensucks.com”. He admitted he was responsible for the website but denied he was responsible for the offensive and arguably defamatory comments posted on it. The court ordered the website be removed, and suggested that simply by maintaining a site, and inviting negative comments, the operator of the site opens itself up to liability for what is posted.

Similarly, in certain circumstances a company might also face liability for material appearing on sites which they ‘link’ to. The century-old case of Hird v Wood held that a person drawing to the attention of passers-by a defamatory sign constituted communication of defamatory material by that person. By analogy, it is possible that a company publishing or communicating material through the use of hyperlinks (i.e. by drawing peoples’ attention to defamatory content on an external site) might also face liability.

Moreover, in a recent Federal Court of Australia decision, Cooper v Universal Music Australia Pty Ltd, the defendant was held liable for providing a link on its website to material which was in breach of the plaintiff’s copyright.

Defamation laws do, however, afford some protection to “subordinate” or “secondary” distributors” for what is known as “innocent dissemination”, however the nuances of the defence are complex, and not capable of full explanation in this article.

Similarly, the Federal Broadcasting Services Act protects internet content hosts where they were not aware of the nature of the content. However if the host is notified of a defamatory post, which is not removed, liability for defamation damages may lie with the host as well as the author.

If you have any doubts about legal issues facing your company and its website for utilising social networking sites, contact your legal advisor.

David Hope is a partner and Christien Corns a lawyer for Middletons (www.middletons.com.au), a national commercial law firm working out of offices in Sydney and Melbourne.

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