By Travis Schultz
In our 21st century world of cyber space and e-commerce, there aren’t too many businesses who don’t have a sophisticated website as part of their marketing and customer relations platform. There is no doubt that these websites can be highly beneficial business tools, but they can also pose a risk of litigation where the content is not monitored carefully or where “loose” comments and opinions are allowed to be posted.
Recently, the world’s biggest search engine company, Google Inc. discovered how wide reaching defamation laws are in Australia, when the Supreme Court of Victoria handed down its decision in a defamation case brought against it by former music promoter, Milorad Trkulja.
In his claim, Mr Trkulja sued Google for defamation as a result of Google allowing material to be published on the internet which a jury had found implied that Mr Trkulja was involved in Melbourne crime to the extent that his rivals had hired a hit man to attempt to murder him. The material arose out of an incident in 2004 when Mr Trkulja had been shot in the back by an unknown person whilst he was sitting in a Melbourne restaurant having lunch with his elderly mother.
Amongst other material, Google had permitted to be published articles and photographs of Mr Trkulja under the heading “Melbourne Crime” and had also published photos of the Plaintiff alongside pictures of underworld figure Tony Mokbel and an alleged drug trafficker and murderer, Denis Tanner.
Google had argued that it could not be a “publisher” of the material simply by operating a search engine business but that argument was rejected by Justice Beach in the Supreme Court of Victoria because Google had the power to stop publication of the material after a reasonable period of time and its failure to do so lead to an inference that it consented to the publication of the offensive material.
Whilst not many of us in business operate with technology so sophisticated as an internet search engine, the principles that can be drawn from the decision have the potential to impact on all of us. If we, in our business, operate websites where we either post opinion matters or even allow our customers and the public to post comments which remain accessible to others, then we can potentially be liable for any defamatory content that is allowed to remain on the web.
There is no doubt that special vigilance is required by businesses to ensure that the content of our websites is carefully monitored as otherwise the site itself might transform from a highly beneficial marketing tool, to a potent piece of self incriminating evidence in defamation proceedings.