upheld a claim for defamation brought by the Plaintiff, Mr
Timothy Vissher against the Maritime Union of Australia (MUA);
confirmed the Australian approach to liability for defamation
in relation to hyperlinked material posted on a website.
In February 2011 during Cyclone Dianne, Mr Visscher, who was
commanding an ocean tugboat the Hako Esteem, made the
decision to anchor it at Shark Bay in the face of the cyclone. The
MUA published an article on its website expressing concerns about
this decision of Mr Visscher. MUA's article contained a
hyperlink to another article in the Cootamundra Herald
which expanded on the concerns raised by MUA. The Herald
article was found to have contained defamatory imputations.
MUA admitted that it had published its article on the website,
but it denied that its posting of the hyperlink to the
Cootamundra Herald article constituted publication of the
Cootamundra Herald article.
Counsel for MUA cited the Canadian authority of Crookes v
Newtown  3 SCR 269 in which the majority of the Court
construed hyperlinks as being a reference to the existence
and/or location of content rather than a publication of that
The Supreme Court in this case disagreed with MUA's argument
It doubted that MUA could sustain an argument that it had not
endorsed the content of the hyperlink.
The Canadian decision was informed by the Canadian Charter
of Rights and Freedoms which had no equivalent in
UK and Australian case law reveals that the relevant approach
aligns with that expressed by Hunt J in Urbanchich v Drummoyne
Municipal Council  Aust Torts Reports 81-127 where a
defendant might be found liable for the publication of someone
else's defamatory material which was physically attached to the
defendant's property if the defendant was aware of the presence
of the defamatory material on their property and refused to remove
it and the refusal to remove would indicate consent, approval or
ratification of the defamatory content.
Applying Urbanchich the Court held that publication
through a hyperlink had occurred, and that, the MUA had accepted
responsibility for the continued linked publication of the
Cootamundra Herald article and (at the very least), adoption or
promotion of the content.
This case provides a sobering warning to take care when
hyperlinking to content posted on the web and be aware that
hyperlinked content can be updated by third parties at anytime
placing you as the publisher in an invidious position.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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