This undertaking not to use documents obtained under compulsion for another purpose is implied for all litigants and is called a ‘Harman Undertaking’, named after the 1983 English case Harman v Secretary of State for the Home Department, where it was first articulated.

The Harman Undertaking tries to find a ‘midpoint’ between two important legal principles:

1. that parties to litigation should have all the evidence against them so that there is no ‘trial by ambush’; and
2. that a person (the disclosing party) is entitled to confidentiality and privacy.

‘Discovery’ is the process that prevents trial by ambush. Under the discovery process, each party must make available to the other party every document that is relevant to the matters in question based on the pleadings in the case. A party cannot object to providing documents because those documents are personal or contain sensitive commercial information – that is, discovery violates the right to privacy and confidentiality.[1]

Enter the Harman Undertaking. As the court compels litigants to provide sensitive and confidential documents (with any failure to do so being a contempt of court), the court also requires that each of those documents only be used for the purposes of the litigation that caused them to be produced. For example, if a person identifies from a document obtained in discovery from the other party, or under subpoena from a third party, that there is a new claim against a person for an unrelated matter, that document (no matter how incriminating) cannot be used to prosecute the new claim. Using a document provided under compulsion for any other purpose is a contempt of court.

Very occasionally the court will use its power to dispense with or modify the Harman obligation if there are ‘special circumstances’. In the recent matter of D’Sylva v Bloombold Investments Pty Ltd [2023] WASC 141, with the consent of both parties, the Western Australian Supreme Court released the parties from the Harman Undertaking to allow documents obtained in discovery and produced by a third party, to be used by the litigants ‘for the limited purposes’ of obtaining tax advice and filing tax returns.

The Court found that releasing the documents for taxation purposes was in the interests of justice as it allowed the parties to obtain the proper accounting advice and lodge proper tax returns with the ATO.

If you receive any documents under a compulsive Court process you must ensure that you do not use, distribute or publish the documents or information contained in the documents in any way, otherwise you will be in breach of your implied Harman Undertaking.

If you have any doubts about documents in your possession obtained during a court process and your rights and obligations in relation to them, don’t hesitate to contact Steedman Stagg Lawyers for assistance and advice.

[1] Note though that in appropriate cases a disclosing party concerned about documents it is producing which are, for example, confidential or which contain commercial‑in‑confidence information, may apply for orders which impose a confidentiality regime in relation to who can access those documents within the litigation, and how they are to be protected and or kept confidential during trial and in the court’s reasons for decision.

In proceedings originally commenced by Mr George Defteros in the Supreme Court of Victoria, Mr Defteros sought damages for defamation from Google, claiming Google was a publisher of an article featured on the mainstream online news platform operated by The Age. That news report appeared in Google’s search results when Mr Defteros ‘googled’ his name and was found to be defamatory of him.

Google denied that it was a publisher of The Age’s online article.

The trial judge, Richards J, found that Google was the publisher of the article as the provision of a hyperlinked search result is instrumental to the communication of the content of the webpage to the user.”[1]

Google appealed her Honour’s decision to the Victorian Court of Appeal, which was dismissed.

Google appealed that unfavourable Court of Appeal decision to the High Court.

Their Honours Chief Justice Kiefel, and Justices Gleeson, Gageler, Edelman and Steward allowed the appeal, finding that Google was not the publisher of the defamatory article.

Justices Gordon and Keane dissented, finding that Google was the publisher of the article.

In a joint judgment, Kiefel CJ and Gleeson J found that the relevant question was whether providing search results which, in response to an enquiry, direct the attention of a person to the webpage of another, and assisting the enquirer in accessing it, amounts to an act of participation in the communication of defamatory matter thereby rendering the search result provider a publisher.[2]

Their Honours found that as Google did not contribute to any extent to the publication of The Age’s article, nor did Google encourage the writing of comments in response to the article, Google was not instrumental in communicating the article.  Rather, Google merely assisted people searching the Web to find certain information and to access it.[3]

Their Honours concluded that to hold otherwise would “expand the principles relating to publication”.[4]

In a separate judgment, Gageler J, agreeing with Kiefel CJ and Gleeson J, relevantly found that (at [74]):

“Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.”

Finally, in a joint judgment delivered by Edelman J and Steward J, their Honours rejected Mr Defteros’ contentions that Google assisted The Age with a common intention to publish the article. Their Honours found that:

• “The role of [Google] rose no higher than a mere facilitator because [Google] had no common intention shared with The Age that the searcher click on the hyperlink to the Underworld article” (at [220]).
• The facts did not support “a conclusion that the specific words accompanying the hyperlink to the Underworld article were likely to entice individuals to click on it”.[5]
• “[T]here was no justification for the proposition that the words accompanying the hyperlink either directed or encouraged the reader to click on the hyperlink”.[6]

In a dissenting judgment, Keane J concluded that Google could not be “accurately described as a passive instrument by means of which primary publishers convey information” (at [100]).

His Honour also found that “by facilitating near-instantaneous access by hyperlink to publications,” there was “sufficient communication of the content of the work of the primary publisher” to find that Google was in fact a publisher of the defamatory matter.[7]

Her Honour Gordon J, also in dissent, in applying the strict “publication rule”, concluded that where there is an intention built into a search engine, namely that third parties will access and read news articles that are hyperlinked, that search engine will be a publisher.[8]

Conclusion

This 5-2 decision is one which has the potential to throw up a number of “land mine” issues.

The particular circumstances of the case may result in the findings of the five‑justice majority having potentially complex application on the question of who is a ‘publisher’ of defamatory content in the online environment.

Posters of Twitter or LinkedIn content users need to beware. SSL does not consider, for example, this decision means that posts on such social media platforms containing only a hyperlink to potentially defamatory material will absolve the poster of liability on the basis that they are not a publisher.

In our view , the decision should not be taken as providing any “average Joe” with an impenetrable shield against being found to have been the publisher of defamatory matter which is downloadable in full at some other site or online source.

[1] Google LLC v Defteros [2022] HCA 27 [15].

[2] Google LLC v Defteros [2022] HCA 27 [24].

[3] Google LLC v Defteros [2022] HCA 27 [49].

[4] Google LLC v Defteros [2022] HCA 27 [53].

[5] Google LLC v Defteros [2022] HCA 27 [233] Edelman J and Steward J.

[6] Google LLC v Defteros [2022] HCA 27 [236] Edelman J and Steward J.

[7] Google LLC v Defteros [2022] HCA 27 [104] Keane J.

[8] Google LLC v Defteros [2022] HCA 27 [137] Gordon J.

Landsdale shooting accused could be revealed after court win

Comment

Some commentators have issued grave warnings that any and all who operate Facebook pages should beware of this decision and its potentially ‘chilling effect’.

These sorts of reactions may exaggerate the true impact of the decision. Some of this commentary – in its ‘absolute’ terms – tends to overlook the import the High Court placed on the purpose of the Facebook pages of the mainstream media organisations which were designed to encourage and facilitate visits by third-party users to their own websites for commercial gain.

Nor do they arguably give adequate weight to the some of the High Court’s observations in relation to the nature of the stories featured by the appellants in their Facebook posts, and the importance of the number of comments, which, in the context of media organisations ‘increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and revenue from advertising on both the page and the digital newspaper or broadcast’ (see [8]).

All of that said, this decision has introduced sufficient uncertainty and concern for all owners and administrators of Facebook page accounts for the legislature to now step in and craft laws in response to the decision.

Background

The media appellants, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, were found, at first instance, as a matter of principle, to be publishers of allegedly defamatory content made in relation to posts on their public Facebook pages. The NSW Supreme Court was not concerned about making actual findings as to whether the posts of concern were defamatory, or whether defences applied. Those matters will now be litigated in the proceedings.

The initial Facebook posts by each of the appellants were links to news articles reporting on Dylan Voller and his time spent at the Don Dale Youth Detention Centre in the Northern Territory.

Following the initial posts, Facebook users posted comments which were allegedly defamatory of Mr Voller.

Issues

The critical issue for determination was whether the media organisations could be regarded as ‘publishers’ of the comments made by other Facebook users and, if so, whether they were ‘primary’ or ‘subordinate’ publishers.

The question of whether the defendants were primary or subordinate publishers raised a further issue regarding the defence of innocent dissemination under s 32 of the Defamation Act 2005 (NSW). This section operates as a defence against liability but is only available to subordinate and not primary publishers. In other words, a finding ‘that the defendant media company in each proceeding is a first or primary publisher… would be fatal to the availability to the applicants of a defence of innocent dissemination under’ (see: Voller [2020] NSWCA 102 Meagher JA and Simpson AJA [60]) s 32 of the Defamation Act 2005 (NSW).

Decision of the Primary Judge

The judgment of Rothman J was delivered in June 2019. His Honour states at paragraph [2]:

‘Each of the corporate defendants is a media organisation and is in the business of disseminating material to the public by electronic or other means, or both.’

It is from this factual foundation that his Honour, the Court of Appeal of NSW and the High Court were concerned to apply the relevant principles of defamation law. It is critical to understand that the reasoning proceeds on the basis that the parties being sued were three media organisations, whose stock and trade is publishing material for public consumption.

Rothman J also found that ‘the purpose of the public Facebook page[s]’ maintained by the three defendants was ‘not to disseminate news’ (see [30]). Rather, his Honour formed the view that the real purpose for a public Facebook page in the context of media organisations ‘is to excite comments and interest from and by the public’ (see [30]).

Based on the evidence, Rothman J made the following factual conclusions (see [90]):

• The media defendants maintained the public Facebook pages for the purpose of promulgation of articles; exciting the interest of Facebook users; increasing subscribers; and increasing the profile of the initial media publication, all of which are directed towards advertising revenue.
• The number of comments on a public Facebook page is probably the most important factor in generating readership and advertising revenue.

Rothman J said that ‘[a] public Facebook page is… unique’ (see [205]) and went on to distinguish the unique features in the context of media companies stating that (see [224]):

‘Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes the publication of comments.’

Court of Appeal Decision

The Court of Appeal of NSW found that the appellants had ‘facilitated the making of comments by third parties which then became available to others’ (see [16]). Accordingly, the Court held that the respondent media entities had established the element of publication and therefore they were “publishers” of the allegedly defamatory material.

Their Honours Meagher JA and Simpson AJA concluded that neither ‘what the defendants knew or ought to have known about the defamatory content of the comments was relevant to whether each participated in their publication’ (see [103]). In a joint judgment they said that (see [104]):

‘Under the common law a person may be liable for publishing defamatory material if by an act or conduct he or she intentionally assisted in the process of conveying the words bearing the defamatory meaning to a third party’ (citing Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 [19] and Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 [26]).

Competing Contentions before the High Court

The media appellants argued ‘that the common law requires that the publication of defamatory matter be intentional’ and that ‘it [was] not sufficient that a defendant merely plays a passive instrumental role in the process of publication’ (see [18]).

The respondent (Mr Voller) contended that ‘any degree of participation in the process of communicating defamatory material, however minor, makes that participant a publisher’ (see [147]).

Mr Voller further contended ‘that there is no requirement to demonstrate an intention to publish as an element in the tort of defamation’ (see [151]) and that the appellants were publishers of the comments ‘from the moment they were posted’ by third-party users (see [148]).

Kiefel CJ, Keane and Gleeson JJ

In their joint judgment, Kiefel CJ, Keane and Gleeson JJ held that the Court of Appeal ‘was correct to hold that the acts of the [media] appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments’ (see [55]).

Their Honours rejected the appellants’ contention that the publication must be intentional, rather than passive.

The appellants argued that the cases concerned with innocent dissemination supported ‘a requirement of intention to publish defamatory matter’ (see [19]).

Kiefel CJ, Keane and Gleeson JJ disagreed that publication in this context required more than mere dissemination and rejected the proposition that publication requires ‘dissemination with an element of intention’ (see [19]).

Their Honours said that ‘[a] publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or the intention to communicate it’ (see [27]). Rather, a publisher’s liability ‘depends upon mere communication of the defamatory matter to a third person’ (citing Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288 per Dixon J).

To clarify the point, their Honours said that ‘questions regarding the knowledge or intention of the publisher do not arise’ (see [28]) and that ‘the intention of the author of the defamatory matter [was irrelevant] because the actionable wrong is the publication itself’ (see [27]; citing Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 287 per Dixon J).

The formulation adopted by their Honours with respect to publication requires no more than ‘a voluntary act of participation in’ the communication of defamatory material (see [32]).

Gageler and Gordon JJ

Gageler and Gordon JJ also agreed with the decision of the Court of Appeal of New South Wales and dismissed the appeals.

Their Honours proceeded on the basis that the term ‘publication’ meant ‘a bilateral act – in which the publisher makes [matter] available and a third party has [the matter] available for his or her comprehension’ (see [61]; quoting Dow Jones & Co Inc Gutnick (2002) 210 CLR 575 at 600 [26]).

Consequently, their Honours concluded that publication in the context of the internet was ‘complete when and where the matter is accessed by a third party in a comprehensible form’ (see [61]).

In relation to participation, their Honours took the view that it was ‘enough for participation in a process that is in fact directed to making matter available for comprehension by a third party to be characterised as intentional’ so long as ‘the participation in the process is active and voluntary’ (see [66]). It was also said that participation may be made out irrespective of the ‘degree of active and voluntary participation in the process’ and the ‘knowledge or intention on the part of the participant’ (see [66]).

Concluding that ‘liability in defamation depends upon “mere communication” of the defamatory matter to a third person, provided the defendant intentionally participated to any degree in that process’ (see [88]; citing Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288).

Their Honours reiterated the views of the Supreme Court of NSW ruling that ‘[t]he creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties’ and therefore concluded that the appellants ‘were thereby publishers of the third-party comments’ (see [105]).

Finally, their Honours concluded with a warning to potential defendants. Stating that ‘the appellants attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences’ (see [102]).

Edelman and Steward JJ – dissenting

Edelman and Steward JJ disagreed with the majority position, and delivered separate judgments.

Steward J disagreed that ‘merely allowing third-party access to one’s Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all third-party comments posted thereafter’ (see [180]).

His Honour noted that to conclude otherwise, which is what the majority did, would mean ‘all Facebook page owners whether public or private, would be publishers of third-party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredictable’ (see [180]).

Edelman J took the view that a ‘defendant must intentionally perform an act of publishing a communication, which is of and concerning the plaintiff and which is defamatory’ (see [111]). Alternatively, ‘the defendant must assist in another’s act of publication with a common intention to publish’ (see [111]).

Edelman J found that ‘[t]here was no basis… to conclude that by the (then mandatory) invitation to “comment” on their posted stories the appellants intended to publish remarks on anything and everything, however unrelated to the posted story’ (see [142]).

Both determined that they would allow the appeals in part (see [144] per Edelman J and [186] per Steward J) but stating different reasons for doing so and both requiring the parties to return to the lower court to argue an amended question:

• Edelman J stated that the question be answered as follows (see [144]):

‘The plaintiff will establish the publication element of the cause of action for defamation against the defendant in respect of each of the Facebook comments by third-party users by establishing that the Facebook comment has a connection to the subject matter posted by the defendant that is more than remote or tenuous.’

• Steward J proposed the following (see [186]):

‘The respondent will establish the publication element of the cause of action of defamation in relation to those third-party comments which had been procured, provoked or conduced by posts made by the appellants on their respective Facebook pages.’

Conclusion

In the wake of this decision, there have been calls for further reform to defamation laws. The Federal Attorney-General Michaelia Cash has expressed her concerns around balancing ‘freedom of speech with the protection of reputations in a digital era where unfiltered commentary has been amplified by social media’.

Senator Cash said that the Voller decision presented ‘a considerable liability for all publishers’ and ‘that parts of defamation law are not fit-for-purpose’.

Similar sentiments have gained world-wide traction. For instance, the US news outlet CNN, disabled its Facebook pages in Australia despite recent changes to the social media platform which now allows users to turn off the comment function on individual posts on their respective pages.

In a statement CNN said it was ‘disappointed that Facebook, once again, has failed to ensure its platform is a place for credible journalism and productive dialogue around current events among its users’. Once again, these comments must be considered in the context of an international media organisation whose stock and trade is publishing news.

While each case always depends on its own facts, the Voller decision creates sufficient uncertainty for millions of Facebook account holders as to whether they might attract liability for defamation as a primary publisher of derogatory content posted by others on their page.  At the very least it increases the risk of legal action being taken.  The situation appears ripe and ready for the legislators to step in with laws to deal with the potential outcomes.