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Communications Law Bulletin Vol 40.2 ( July 2021) 53
A person defamed on the internet has
choices. They can ignore it. They can
Or they can go the legal route and
consider defamation litigation.
In that event, the defamed person
may have a choice of who to sue. In
many cases, they will be able to sue
a person—human or corporate—
other than the original author of
the defamatory content. They might
sue the individual author and the
company the individual author
works for; this is what happens in
many cases where a defamed person
sues both a journalist and the media
organisation that published the
journalist’s content.
This article focuses on defamation
on the internet and suing the entities
behind the digital platforms that
have become essential to our lives. By
‘digital platforms’, I mean the likes of
Google, Facebook, Twitter and so on.
Sometimes, these platforms are called
‘internet intermediaries’ or simply
‘intermediaries’1—terms that connote
that these platforms connect internet
users to content created by others.
In the content that follows I explain
the principles that are relevant
to a defamation claim against an
intermediary for content ‘authored’,
or created, by others. Suing
1 See Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40(4)
Sydney Law Review
469.
2 Specifically, they are considering further amendments to the Uniform Defamation Acts:
Civil Law (Wrongs) Act 2002
(ACT);
Defamation Act 2006
(NT);
Defamation Act 2005
(NSW);
Defamation Act 2005
(Qld);
Defamation Act 2005
(SA);
Defamation Act 2005
(Tas);
Defamation Act 2005
(Vic);
Defamation Act
2005
(WA).
3 See generally Michael Douglas and Martin Bennett, ‘“Publication” of Defamation in the Digital Era’ (2020) 47(7)
Brief
6.
4
Dow Jones & Co Inc v Gutnick
(2002) 210 CLR 575, [26]; see also [44] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
5
Goldsmith v Sperrings Ltd
[1977] 1 WLR 478, 505 (Bridge LJ).
6 See
Byrne v Deane
[1937] 1 KB 818;
Webb v Bloch
(1928) 41 CLR 331.
7 See, eg,
Defteros v Google LLC
[2020] VSC 219.
8 NSW Government,
Discussion Paper – Attorneys-General Review of Model Defamation Provisions – Stage 2
(2021) (DP) DP 16 [2.7].
9 Eg,
Defamation Act 2005
(WA) s 32(2).
10
Trkulja v Google LLC (
2018) 263 CLR 149, [39].
11 Eg,
Google Inc v Duffy
(2017) 129 SASR 304. The point is made by Basten JA in
Fairfax Media Publications Pty Ltd v Voller
(2020) 380 ALR 700, 712–4 [48]–[49];
see David Rolph, ‘Before the High Court – Liability for the Publication of Third Party Comments:
Fairfax Media Publications Pty Ltd v Voller
’ (2021) 43(2)
Sydney
Law Review
(Advance) 4.
12 See Alastair Mullis and Richard Parkes (eds),
Gatley on Libel and Slander
(Sweet & Maxwell, 12th ed, 2013) [1.8].
13
Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller
[2021] HCATrans 88 (18 May 2021).
Suing Google, Facebook or Twitter
for Defamation
By Michael Douglas, Bennett & Co
intermediaries like Google and
Facebook for defamation is more
impossible.
The subject is currently under
consideration by those empowered
by the Council of Attorneys-General
to make further amendments to
Australia’s defamation laws.2 Here,
I also make some comments on law
it easier for defamed persons to
protect themselves against serious
reputational harm without spending
their life savings: a right for
defamation to be forgotten.
Publication by intermediaries
An essential element of a claim for
defamation is that the defendant
published the defamatory matter.3
‘Publication’ is a bilateral act, by which
a person communicates defamatory
matter to a person other than the
plaintiff.4 Anyone who participates in
dissemination of the defamation is a
publisher.5 The concept of ‘publication’
has been distinct from that of
‘authorship’ for many decades.6
By making content available to
others, intermediaries ‘publish’
that content.7 However, some
would say that the manner in which
intermediaries publish defamation
is distinguishable from the way that
others publish defamation. Some
have made a distinction between
‘primary’ and ‘secondary’ publishers,
with intermediaries usually being
the latter.8 With respect, those views
are based on a misunderstanding of
the law.
Other than for the purposes of
analysis of an innocent dissemination
defence, which distinguishes
‘primary’ from ‘subordinate’
distributors,9 the distinction is one
without a difference. Decisions
on publication—which the High
Court has described as ‘tolerably
clear’10—with the requirements of
the defence.11 Those decisions also
misrepresent defamation as a tort
other than one of strict liability.12 The
point is implicit in the transcript of
the High Court hearing of the Voller
appeal, of 18 May 2021:13
MR YOUNG: But the point I was
going to make, your Honour, is that
it cannot be said, in our respectful
submission, that the appellants,
simply by operating this page have
intentionally lent their assistance
to the communication of this
particular set of posts containing
allegedly defamatory material.
knowledge to have that sheeted
54 Communications Law Bulletin Vol 40.2 ( July 2021)
home to them, in our submission.
And it is really no different than the
public noticeboard case.
KIEFEL CJ: As in Byrne v Deane?
MR YOUNG: As in Byrne v Deane.
KIEFEL CJ: But there, the
defamatory material was forced
upon the alleged publisher. It is
not a case of actively encouraging
people to use facilities which
enable publication. That is a
distinction, is it not?
MR YOUNG: Yes – I mean, to some
extent I agree with your Honour
because the golf club rules did not
permit - - -
KIEFEL CJ: Made them a
trespasser, in effect.
MR YOUNG: - - - third-party
comments. But the case turned on
applying a concept of knowledge
and inferred intention.
KIEFEL CJ: But where you are
coming close to here is really
a discussion of whether or not
a host of a site should be given
some particular application
of the innocent dissemination
defence. We are not really in the
realms of publication, are we? It
is really what you are discussing
is innocent dissemination defence
and that is not really a matter – a
topic for us, is it?
The authors of a Discussion Paper
on proposed defamation law reform
recently asked whether intermediaries
should be shielded from liability
unless they ‘materially contribute’
to the publication.14 The premise
implicit in that question is false. When
an intermediary publishes matter
according to common law standards—
for example, by providing a social
media platform which disseminates
defamatory matter to users—the
intermediary does materially
contribute to the publication. When
the matter is consumed via social
media in this way, the intermediary
is the cause of the publication, in the
sense that publication could not have
occurred in the way that it did but for
the intermediary’s service.15
The language of ‘materially
with what is essentially a normative
issue.16 The real question is: should
intermediaries be held liable for
content they publish (according
to common law principles) that
they do not author?17 The current
defences available to intermediaries
for defamation claims provide
intermediaries may avoid liability.
Key defences for intermediaries
The Uniform Defamation Acts
contain a defence of innocent
dissemination.18 Intermediaries
will not be liable for defamation
where they facilitate the publication
of defamatory matter created by
authors; and where they neither
knew, nor ought reasonably to
have known, that the matter was
defamatory, provided their lack
of knowledge was not due to any
negligence on their part.
The innocent dissemination defence
is a defence to liability rather than
a denial of the publication element.
However, it does provide Google and
intermediary publishers with some
protection where they are unaware
of the existence of the defamation.
Another important defence is
contained in clause 91 of Schedule
5 to the Broadcasting Services Act
1992 (Cth) (BSA). This defence was
described by the authors of the
recent Discussion Paper as follows:
Clause 91(1) of Schedule 5 to the
BSA, inserted in 1999, provides
an immunity for ‘internet service
providers’ and ‘internet content
hosts’ in certain circumstances in
relation to third-party material.
It provides that a law of a state
or territory, or a rule of common
law or equity, has no effect to the
extent that it:
• subjects an internet content host
or internet service provider to
liability for hosting or carrying
‘internet content’ where they
are not aware of the nature of
the internet content, or
• requires the internet content
host or internet service
provider to monitor, make
inquiries about, or keep records
of, internet content that is
hosted or carried.19
With regard to the text, context and
purpose of the BSA, intermediaries
ought to be properly considered
‘internet content hosts’.20 Accordingly,
where intermediaries are not aware
of the existence of defamatory
content which they publish according
to common law standards, they will
not be liable in defamation.
publishers on notice of the
defamatory content.21 A quick
email to a generic company email
account, or completing the platform’s
Defteros, Richards J considered that
a reasonable time for Google to
consider a notice and remove content
courts’ consideration in future cases.22
14 DP 63, Question 10.
15 See, eg,
Civil Liability Act 2002
(WA) s 5C(1)(a). Anyway, the ‘but for’ test is not even necessary for defamation. The principles of causation of special damage in
the context of defamation will be considered shortly in the appeal from:
Rayney v Western Australia [No 9]
[2017] WASC 367.
16 See James Edelman, ‘Unnecessary Causation’ (2015) 89
Australian Law Journal
20. David Lewis recognised this in his scholarship on causation: ‘We sometimes
single out one among all the causes of some event and call it “the cause”, as if there were no others… I have nothing to say about these principles of invidious
discrimination’: David Lewis, ‘Causation’ (1973) 70(17)
Journal of Philosophy
556.
17 This is analogous to the ‘scope of liability’ issue for negligence, which is bound up with principles of remoteness. See, eg,
Civil Liability Act 2002
(WA) s 5C(1)
(b). It is a question on which educated people can disagree. I have changed my position on the issue over time, after reading more analyses and witnessing
Facebook’s early 2021 tantrum in response in the proposed media bargaining code.
18 See
Defamation Act 2005
(WA) s 32.
19 DP 31.
20 See
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim
[2012] NSWCCA 125;
Fairfax Media Publications; Nationwide News Pty Ltd; Australian News
Channel Pty Ltd v Voller
[2020] NSWCA 102.
21 This para is seen in: Michael Douglas and Martin Bennett, ‘“Publication” of Defamation in the Digital Era’ (2020) 47(7)
Brief
6, 8.
22
Defteros v Google LLC
[2020] VSC 219, [64].
Communications Law Bulletin Vol 40.2 ( July 2021) 55
What this means is that, under the
current law, Facebook, Google et al
will have no liability for defamation
they publish unless the defamed
person tells them about it. In some
cases, this might be abused: a person
who is not really defamed may cry
defamation to remove content they
to respond to this situation below.
The transnational character of
litigation against intermediaries
The content above speaks of suing
‘intermediaries’, which are also
described as ‘digital platforms’. In
reality, it is companies that may
be sued. Intermediaries are often
comprised of several companies.
To sue ‘Facebook’ for example, may
require naming multiple defendants:
like the American Facebook Inc and
the entity in the tax haven, Facebook
Ireland Ltd.
The corporate groups that underpin
intermediaries straddle nation states.
They have a transnational character.
Therefore, litigation involving
intermediaries may engage principles
of private international law.23
Foreign companies behind
intermediaries do not always accept
the authority of Australian courts.
There is a need to reform Australian
law to better adapt to internet
intermediaries taking a recalcitrant
approach to the jurisdiction and
power of Australian courts, in whose
geography these intermediaries derive
millions of dollars. For examples
of intermediaries’ behaviour that
warrants the reform I have in mind:
• Australian Information
Commission v Facebook Inc (No 2)
[2020] FCA 1307:24 the American
company challenged the court’s
jurisdiction over a claim related to
the Cambridge Analytica privacy
scandal, as it affected Australian
Facebook users.
• X v Twitter (2017) 95 NSWLR 301:
the American and Irish corporate
defendants did not even bother
to enter an appearance or make
substantive submissions on the
issue of jurisdiction.
• Google Inc v Equustek Solutions
Inc [2017] 1 SCR 867:25 following
the Supreme Court of Canada’s
judgment, the American
Google obtained relief from a
comparatively inferior US court
purporting to nullify the effect of
the judgment of Canada’s top court.
• KT v Google LLC [2019] NSWSC
1015: the American Google was
to comply with an interlocutory
injunction that enjoined removal
of defamatory reviews, following
frequent requests by the defamed
person to Google for the content
to be removed.
These cases demonstrate how
transnational businesses complex
multi-national corporate structures
to shield their operations from
liability via a ‘jurisdictional veil’.26
These structures depend on the
historical premise that ‘jurisdiction
is territorial’. That premise is a
pre-internet creature. The law has
moved on; it is now quite easy for an
Australian court to claim jurisdiction
over a company overseas.27
The contemporary approach to
generous long-arm jurisdiction of
common law courts is represented
by this dictum of Lord Sumption:
In his judgment in the Court of
Appeal, Longmore LJ described
the service of the English court’s
process out of the jurisdiction
as an “exorbitant” jurisdiction…
This characterisation of the
jurisdiction to allow service out
is traditional, and was originally
based on the notion that the service
of proceedings abroad was an
assertion of sovereign power over
the defendant and a corresponding
interference with the sovereignty
of the state in which process
was served. This is no longer a
realistic view of the situation…
Litigation between residents
of different states is a routine
incident of modern commercial
life. A jurisdiction similar to that
exercised by the English court
is now exercised by the courts
of many other countries… It
should no longer be necessary
to resort to the kind of muscular
presumptions against service out
which are implicit in adjectives
like “exorbitant”. The decision is
generally a pragmatic one in the
litigation in an appropriate forum.28
Sumption referred to ‘modern
commercial life’. In the Digital Platforms
Inquiry, the ACCC described how
digital platforms are now ‘an integral
part of life for most Australians’.29
As part of the ‘modern life’ of most
Australians, some Australians will
suffer harm. They ought to be able to
obtain a remedy for that harm, in a
court of their own country, according
to Australian law—no matter where
the entities that caused that harm are
based. Australian law should adapt to
our modern digital lives.
Addressing practical barriers:
jurisdiction, power and
enforcement
To understand how the law should
be adapted, it is necessary to
understand the distinction between
jurisdiction and power.
23 Or the ‘conflict of laws’. See generally Martin Davies, Andrew Bell, Paul Brereton and Michael Douglas,
Nygh’s Conflict of Laws in Australia
(LexisNexis, 10th ed,
2019).
24 Noted in: Michael Douglas, ‘Facebook’s further attempts to resist the jurisdiction of the Federal Court of Australia futile’,
ConflictofLaws.net
(online), 18
September 2020.
25 Noted in: Michael Douglas, ‘A Global Injunction Against Google’ (2018) 134
Law Quarterly Review
181.
26 Mary Keyes,
Jurisdiction in International Litigation
(Federation Press, 2005) 66–9, quoting Peter Muchlinksi, ‘Corporations in International Litigation: Problems of
Jurisdiction and the United Kingdom Asbestos Cases’ (2001) 50
International & Comparative Law Quarterly
1, 17.
27 See Martin Davies, Andrew Bell, Paul Brereton and Michael Douglas,
Nygh’s Conflict of Laws in Australia
(LexisNexis, 10th ed, 2019) pt II ; Michael Douglas, ‘The
Decline of “Exorbitant Jurisdiction”?’ (2019) 93(4)
Australian Law Journal
278; Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the
Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2)
Australian Bar Review
160.
28
Abela v Badraani
[2013] 1 WLR 2043, 2062–3 [53].
29 ACCC,
Digital Platforms Inquiry: Final Report
(2019) 40.
56 Communications Law Bulletin Vol 40.2 ( July 2021)
‘Jurisdiction’ is a term used in a
variety of senses, including authority
to decide. ‘Power’ is a distinct
concept30 that is sometimes confused
with jurisdiction in scholarship.31
Jurisdiction provides the anterior
power; a court may use its powers in
exercise of its jurisdiction.32
Superior courts are said to have
auxiliary equitable jurisdiction in
aid of the legal rights33 the subject
of a defamation action to enjoin
removal of defamatory content. But
this is better understood as a power
of a court of equity. Some courts
also possess statutory powers to the
same effect;34 and in many cases,
inherent powers which may bind a
third-party in order to protect the
administration of justice.35 Rules
regulating injunctions are not a
source of power; they are the court’s
regulation of a power, either express,
they would possess anyway, even
if the rule were not there. This is to
say: an Australian court has power
to order an intermediary to remove
defamatory content around the
globe.36
Whether a court has jurisdiction
over an intermediary is an anterior
issue. It will be determined by
jurisdictional rules concerning
service, among other things.
For corporations, like those behind
intermediaries, rules on service are
affected by the Corporations Act
2001 (Cth). It is easy to serve a local
corporation. Foreign corporations
that carry on business in Australia
are required to register, which then
makes it easy to serve them.37
Foreign companies behind
intermediaries often do not consider
that they ‘carry on business’ in
Australia. They are wrong. By deriving
data and income from Australia—
corporate structures—they absolutely
carry on business in Australia.
For examples of reasoning of courts
on how foreign companies carry on
business in the forum despite their
objections, see:
• Australian Information
Commission v Facebook Inc (No 2)
[2020] FCA 1307.
• Tiger Yacht Management Ltd v
Morris (2019) 268 FCR 548.
• Valve Corporation v Australian
Competition and Consumer
Commission (2017) 258 FCR 190;
ACCC v Valve (No 3) (2016) 337
ALR 647 (Edelman J).
• Google Inc v Equustek Solutions
Inc [2017] 1 SCR 814; Equustek
Solutions Inc v Google Inc (2015)
386 DLR (4th) 224; Equustek
Solutions Inc v Jack (2014) 374
DLR (4th) 537; Equustek Solutions
Inc v Jack [2012] BCSC 1490.
In the absence of registration, foreign
companies are still amenable to the
jurisdiction of Australian courts
under long-arm rules. But these
principles on service often lead to
Foreign companies behind internet
intermediaries—like Google LLC—
should be compelled to either register
as carrying on business in Australia,
or as accepting service in Australia.
that increase costs for people seeking
access to justice.
However, even if an Australian
court has jurisdiction, a resulting
judgment may have little practical use
unless it can be enforced. Enforcing
a monetary remedy overseas—in
a jurisdiction in which a company
behind an intermediary is based—is
private international law of the foreign
jurisdiction in which enforcement
is sought. The HCCH Judgments
Convention has sought to remedy this
situation, but it is not in force and it
would not apply to defamation.
The laws of the United States—where
many intermediaries are based—
impossible, to enforce Australian
orders made in a defamation
proceeding in that jurisdiction.38
This situation could be remedied
by law reform making enforcement
easier. Options include:
• Explicit provisions allowing
Australian subsidiaries of foreign
companies behind intermediaries,
and their employees, liable in
contempt as if they were in the
shoes of a foreign company that
would otherwise be in contempt
for failing to comply with an
Australian court order.39
• Allowing money judgments
against foreign intermediaries to
be enforced against Australian
subsidiaries.
• Requiring foreign parent
companies of intermediaries to
keep a percentage of liquid assets
in Australia, taken from income
derived from Australians, to be
used to compensate those who
are harmed by intermediaries’
30
Minister for Immigration and Multicultural and Indigenous Affairs v B
(2004) 219 CLR 365, 377 [6].
31 Eg, Dan Jerker B Svantesson, ‘Jurisdiction in 3D – “Scope of (Remedial) Jurisdiction” as a Third Dimension of Jurisdiction’ (2016) 12(1)
Journal of Private
International Law
60.
32
CGU Insurance Ltd v Blakeley
(2016) 259 CLR 339, 353 [31] (French CJ, Kiefel, Bell and Keane JJ); see further Mark Leeming,
Authority to Decide: The Law of
Jurisdiction in Australia
(Federation Press, 2nd ed, 2020) 14.
33 See Michael Douglas, ‘Anti-Suit Injunctions in Australia’ (2017) 41(1)
Melbourne University Law Review
66.
34 Eg,
Federal Court of Australia Act 1976
(Cth) s 23.
35 See
Cardile v LED Builders Pty Ltd
(1999) 198 CLR 380.
36 See Michael Douglas, ‘A Global Injunction Against Google’ (2018) 134
Law Quarterly Review
181; Michael Douglas, ‘Extraterritorial Injunctions Affecting the
Internet’ (2018) 12(1)
Journal of Equity
34, cited in: Law Commission of Ontario,
Defamation Law in the Internet Age
(Final Report, 2020);
Eva Glawischnig-
Piesczek v Facebook Ireland Limited
(Case C18/18).
37
Corporations Act 2001
(Cth) s 601CD;
Corporations Act 2001
(Cth) s 601CX(1).
38 See, eg,
Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act
28 USC 4101- 4105 (‘SPEECH Act’); First Amendment of
the US Constitution. See further Richard Garnett and Megan Richardson, ‘Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the
(American) Right to Freedom of Speech in Cross-Border Libel Cases’ (2009) 5
Journal of Private International Law
47; David Rolph, ‘Splendid Isolation? Australia
as a Destination for “Libel Tourism”’ (2012) 19
Australian International Law Journal
79.
39 Courts may have this power in a variety of contexts; see, eg,
KT v Google LLC
[2019] NSWSC 1015.
Communications Law Bulletin Vol 40.2 ( July 2021) 57
functions.40 The assets could
reside in an Australian subsidiary
against whom the judgment is
enforceable, making foreign anti-
A right for defamation to be
forgotten?
This article has explained how
a necessary condition of an
intermediary’s liability for defamation
is that the corporate person behind
the intermediary is put on notice of
the existence of the defamation.
The trigger to put an internet
intermediary on notice that they are
publishing defamatory matter should
be quick and inexpensive. A defamed
person should not need to go to a
lawyer like me before they can protect
their reputation via defamation law.41
There are many different ways in
which the value of a ‘quick and
intermediaries’ publications could be
put into effect in a way that puts the
interests of Australian consumers
potential process:
• Intermediaries are required
to develop a tailored ‘Report
defamation of an Australian
person’ feature into every aspect
of their platform.
• Natural persons, and those
with capacity to sue under the
incoming changes, can utilise the
feature without going to a lawyer
or issuing a concerns notice.
• The feature requires the reporting
is wrong with the content, and (2)
provide their contact details.
• The impugned content is
reviewed by an employee of the
intermediary for basic legibility. If
it makes sense, and seems genuine,
the content is immediately taken
down, pending review.
• An independent ‘defamation
commissioner’ reviews the
complaint ASAP and within
7 days. If it is prima facie
defamatory (not having regard
to defences), the intermediary’s
content stays down. Of course, if
the intermediary’s publication
is linking to some other website,
that content would remain online;
but its visibility, and so propensity
to cause damage via the grapevine
effect, would be diminished.
• The intermediary then has an
obligation to use best endeavours
to notify the author of the removed
publication of the outcome. The
author has standing to challenge
the defamation commissioner’s
decision via merits review, at
that stage noting any defences
to defamation. (Cf the process
for challenging a decision of the
Privacy Commissioner.)42
• If the intermediary does not take
the content down after initial
review, prior to determination
of the defamation commissioner,
it does not have a defence to
defamation.
of the defamation commissioner—
is funded by intermediaries.
The proposal is not that novel. It is
a rough defamation version of the
GDPR’s right to erasure. We may see an
equivalent law in the Privacy Act 1988
(Cth) soon anyway.43 Both privacy and
reputation are human rights which
Australia must protect as part of its
international obligations.44 The value
of each lies in basic human dignity
and personal autonomy. Businesses—
like internet intermediaries—ought
to adapt to ensure these values are
protected. There ought to be a right for
defamation to be forgotten.
Conclusion
I love Google. Google made my
phone. At home, Google tells me the
news in the morning and controls my
music. Gmail is great. But I don’t love
Google so much that I think that the
foreign companies behind it should
not have to comply with the same
law as everyone else.
The enormous power of digital
platforms is the subject of a great
deal of academic attention around the
world.45 Some of that literature deals
with black letter law;46 a lot of it does
not. Balkin, a law professor at Yale, has
explained the phenomenon in terms
of persons and businesses who collect,
analyse, use, sell, and distribute
personal information. He argues that
‘[b]ecause of their special power over
others and their special relationships
special duties to act in ways that do
not harm the interests of the people
whose information [they deal with]’.47
The special power of digital
platforms informed the Digital
Platforms Inquiry, and other recent
Australian law reform proposals.48
It should shape the future direction
of Australian laws with respect to
defamation. If intermediaries want
to avoid liability for defamation,
then they ought to take a more active
role in protecting reputations from
them for defamation in an Australian
court.
40 A hybrid of an insurance scheme deployed for other torts and the Media Bargaining Code.
41 On that issue, the new mandate that a concerns notice of a particular form be issued before proceedings can be commenced is a retrograde step that will inhibit
access to justice for many Australians with legitimate claims.
42 Eg,
Ben Grubb and Telstra Corporation Limited
[2015] AICmr 35;
Telstra Corporation Ltd v Privacy Commissioner
[2015] AATA 991; (2015) 254 IR 83;
Privacy
Commissioner v Telstra Corporation Limited
(2017) 249 FCR 24.
43 Australian Government, Attorney-General’s Department,
Privacy Act Review – Issues Paper
(October 2020) 11; ACCC,
Digital Platforms Inquiry: Final Report
(2019) 470–1.
44 See ICCPR art 17. See
Australian Associated Press Pty Limited and Secretary, Department of Home Affairs (Freedom of information)
[2018] AATA 741, [134].
45 This para is derived from a draft of a chapter of a forthcoming text I am co-authoring: David Rolph et al,
Media Law – Cases, Materials and Commentary
(Oxford
University Press, 2021, forthcoming) ch 11.
46 See generally, for example, Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40(4)
Sydney Law Review
469.
47 Jack M Balkin, ‘Information Fiduciaries and the First Amendment’ (2016) 49 UC
Davis Law Review
1183, 1186.
48 See Australian Government, Attorney-General’s Department,
Privacy Act Review – Issues Paper
(October 2020) 18, questions 48–52.
