DEFAMATION – Publication – whether hyperlink to defamatory material and an accompanying text on a personal Facebook page amounts to publication – whether Tribunal applied correct test
This appeal concerns whether Ms Katrina Bailey, the appellant, participated in the publication of material that was defamatory of Mr David Bottrill, the respondent, by placing a functioning hyperlink with a small amount of what was found to be neutral text on her Facebook page. The hyperlink directed any person who clicked on the link to material which was clearly defamatory of the respondent, located on another website, YouTube.
The appeal is from a decision of the appeal panel of the Australian Capital Territory Civil and Administrative Tribunal (Appeal Tribunal) delivered on 30 November 2018: Bailey v Bottrill (Appeal) [2018] ACAT 120 (Appeal Decision). The Appeal Decision was itself an appeal from a single instance decision of Senior Member Donohoe SC dated 20 April 2018: Bottrill v Bailey (Civil Dispute) [2018] ACAT 45 (First Instance Decision).
The appellant has…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bailey v Bottrill (No 2) [2019] ACTSC 167
Case
[2019] ACTSC 167
Decision Date
CaseChat Overview and Summary
In Bailey v Bottrill (No 2), the parties involved in the dispute were Bailey, the plaintiff, and Bottrill, the defendant. The case revolved around allegations of defamation and the question of whether the defendant's actions constituted a publication of defamatory material. The matter was heard in the Federal Court of Australia.
The legal issues the court needed to resolve included whether the hyperlink to the defamatory material, along with the accompanying text, posted on the defendant's personal Facebook page constituted a publication of the defamatory content. Additionally, the court had to determine whether the Tribunal applied the correct test in reaching its conclusion. The crux of the argument was whether the hyperlink alone, without additional comments or actions by the defendant, was sufficient to establish a publication of defamatory material.
In its reasoning, the court examined the nature of the hyperlink and accompanying text on the defendant's Facebook page. It found that the hyperlink, by itself, without any additional commentary or action by the defendant, did not amount to a publication of the defamatory content. The court emphasised that the test for publication should focus on whether the defendant played an active role in the dissemination of the defamatory material. The court held that the Tribunal had erred in its application of the test for publication, and as a result, the appeal was dismissed with costs.