Liability for internet archives: The risks

Internet Law Bulletin

1 April 2010

Some of the internet’s central roles are to deliver news instantaneously and provide adequate search engines to users. But these roles may put internet publishers at risk of contempt of court proceedings.

There have been a number of decisions in recent years, both in Australia and overseas, regarding the liability of online publishers for historical material that is still accessible via online archives or search engines.

The authors' review of the authorities suggests that while there are some concerns for online publishers, the legal position is uncertain as the law in relation to contempt of court and suppression orders remains in a state of flux and is likely to receive ongoing judicial consideration in coming years.

Online publishers should be conscious of the courts’ slow shift towards expanding the heads of liability for archived/historical material, however. The risk of multiple liability for defamation remains unchanged. Accordingly, online publishers should be alert and remove defamatory material immediately after it has been brought to their attention, even if the removal is temporary.

Their tips to publishers to minimise exposure to contempt prosecutions or suppression orders for historical or archived material on the internet include:

  • avoid linking new/current articles to historical material, particularly where the subject matter of the new article forms part of the subject matter of a pending proceeding in court;
  • exercise care when researching a current news article and avoid drawing too much from historical material available on the internet, which may be out of date;
  • consider imposing restrictions on access to historical or archived material on your website;
  • always respond swiftly and properly if contacted by prosecutors, defendants’ lawyers or other interested parties about potentially problematic internet material;
  • seek a practical and co-operative outcome by consent to avoid the court having to make any formal orders;
    have an effective policy and procedure for removal of internet material; and
  • seek advice from legal experts with knowledge of court reporting matters in the local jurisdiction.