Digital is forever, but time limits are not: the ins and outs of digital publication in defamation cases

While organisations and individuals should take reasonable care to ensure that material posted online is capable of being supported, the window for commencing a defamation claim is a reasonably narrow one. And although digital can leave a lasting footprint and be thought of as forever, limitation periods are not. It is simply not enough for a plaintiff to point to the existence of a website that contains allegedly defamatory material. They must also have evidence that demonstrates or warrants the inference that the material has been accessed and downloaded within the limitation period. A failure to do so may see the claim struck out. That’s exactly what happened in this case.

In Hodgetts v Nine Network Australia Pty Ltd & Ors [2020] QSC 330 the Nine Network and its A Current Affair (ACA) program (together the Nine Network) faced a defamation claim of almost $2.5 billion dollars when a videogame developer took issue with an ACA segment that had portrayed him as an untrustworthy conman. In what may be a rare instance of an early strike out, the Supreme Court gave summary judgment in favour of the Nine Network after Mr Hodgetts failed to lead evidence to demonstrate that the offending material had been accessed within the limitation period (and he failed to seek any extension to the limitation period).

On a winner?

In April 2017 Mr Kyle Hodgetts commenced proceedings in the Queensland Supreme Court, seeking $2,475,000,000 in damages for defamation, after one of his investors reported seeing the ACA segment titled 'Kyle the Con' that had aired sometime in June 2014. At the time the segment was first broadcast, Mr Hodgetts was in the process of producing a video game called "Virtual Earth Online". He exhibited significant confidence in his creation, claiming that his game would have been as big as major titles such as Minecraft, Super Mario Brothers or even Pokémon, had it not been for ACA's portrayal of him.

Mr Hodgetts also joined Ms Lisa Cuthbert and Mr Gary Field to the proceedings because they were interviewed in the segment, and Ms Cuthbert allegedly republished the matter on her website, on or about 13 May 2016. Mr Hodgetts obtained default judgment against Ms Cuthbert in August 2017 after she failed to provide a defence to his claim. Mr Field, on the other hand, joined with the Nine Network in its application for summary judgment.

Mr Hodgetts chose not to sue in respect of the television broadcast (perhaps because he knew he was out of time). He had, after all written to ACA only a few days prior to its story being shown, threatening to sue if it proceeded to "publish untruths about me or my company". Rather, he relied upon the Nine Network's act of uploading and publishing the segment to its website, and subsequent publications to Twitter and Facebook. He claimed the website publication was available for viewing on the website free of charge by any member of the Australian public up until approximately May 2016, that it remained accessible until at least 27 April 2017 and that it was viewed by members of the public between May 2016 and April 2017. As a consequence he claimed that republication occurred between 13 May 2016 and 27 April 2017 (ie. within the year prior to him filing proceedings). He also claimed that the Twitter and Facebook publications were accessible on ACA's Twitter and Facebook pages until 1 June 2020, and had been viewed by members of the public between 28 April 2016 and 27 April 2017.

Mr Hodgetts also contended that the Nine Network should be held responsible for any republication by Ms Cuthbert that occurred in May 2016. This claim was efficiently despatched by a finding that there was no evidence that Nine Network, as the original publisher, exercised any control over Ms Cuthbert.

Time limits and summary judgment applications

Nine Network's website, Twitter and Facebook publications were made in early June 2014, some three years before the action was filed and six years before Mr Hodgett's amended pleading made any reference to the Twitter and Facebook publications. Nine Network applied for summary judgment on the basis that:

• Mr Hodgetts was statute-barred. Section 10AA of the Limitation of Actions Act 1974 (Qld) says an action for defamation “must not be brought after the end of 1 year from the date of the publication of the matter complained of". (Although section 32A allowed Mr Hodgetts to apply for an extension of up to three years, he did not do so, and the Nine Network submitted that such an application “would inevitably be refused” as Mr Hodgetts was aware of the publication in advance of its broadcast); and
• Mr Hodgetts did not have any real prospect of succeeding on this claim at trial, as he would be unable to prove that the republication was the "natural and probable consequence of the freely accessible publication".

Mr Hodgetts asserted that his claim fell within the limitation period by claiming that the website material remained accessible until at least 27 April 2017 and the Twitter and Facebook publications were accessible as at 1 June 2020 and were all viewed by members of the public up until April 2017.

What is needed to prove defamatory website publications?

In considering the date of publication, the Court noted that publication on the internet is not established by the unilateral act on the part of the publisher in making the material available online. Rather, it requires a third party to have comprehended that material. A plaintiff is required to prove that the material has in fact been downloaded. The mere fact that material might remain available on the internet within the limitation period is insufficient. Given the size of the internet, courts will not infer that a person has identified and accessed a webpage simply because it exists. As noted in Sims v Jooste (No 2) [2016] WASCA 83:

"There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site".

Mr Hodgetts was therefore required to adduce evidence that the material had in fact been accessed and downloaded – or plead and prove a platform of facts from which an inference of download could properly be drawn (eg. evidence of the number of hits at particular time periods) – and this was something he failed to do.

Mr Hodgetts' affidavit exhibited screenshots of the Nine Website taken on 10 August 2020, showing access to episodes as far back as 2016, from which he attempted to assert that there was no evidence that the video was removed within 12 months. These screenshots did not, however, include the "Kyle the Con segment". He claimed that he was unable to substantiate his claim without receiving "full and frank disclosure" from the Nine Network.

In response, the Nine Network led evidence from Ms Kiah Officer, Executive Counsel of the Nine Network. She deposed to having made inquiries as to whether the "Kyle the Con" segment was still available online in digital format or had been taken down from Channel Nine's websites. She was informed by relevant personnel that videos posted to ACA were removed after 12 months and therefore could not have been available after June 2015. Adobe Analytics data also suggested that the material had not been viewed by any person after June 2015.

The Court observed "The fact that the present ACA website holds historic episodes for four years as at 10 August 2020, does not contradict Ms Officer’s evidence that the material published on 4 or 5 June 2014 was automatically removed from the then ACA website after 12 months". It also considered the claim that Ms Cuthbert had posted on her website a hyperlink to the ACA website video. The screenshot evidence submitted by Mr Hodgetts was, however, insufficient to enable an inference that the web address displayed was a hyperlink and, if so, when it was accessed.

In the circumstances, the Court found that Mr Hodgetts had no real prospect of establishing that the website publication was accessed and downloaded by a person after April 2016, and therefore no real prospect of establishing that the cause of action complained of was brought within the 12 month limitation period.

Problems with the Facebook and Twitter case

Even if one accepted that a member of the public viewed the Facebook or Twitter pages on 27 April 2017, Mr Hodgetts faced two serious pleading issues. The first was that his amended statement of claim (which pleaded the Facebook and Twitter publications) was not filed until 6 July 2020, more than 12 months after the pleaded April 2017 date. The second was that he failed to plead that the Facebook and Twitter publications had been viewed by members of the public within one year prior to that matter being pleaded, that is on or after 6 July 2019.

Pleading issues aside, Mr Hodgetts also fell short in evidence. He alleged that in June of 2020, he did a Google search for “Kyle the con”. His exhibit revealed that his Google search was not for “Kyle the con” but rather “kylethecon twitter”. In any event, the Google search could not establish, as a matter of fact, that the tweet was accessed and downloaded by a third person on or after 6 July 2019, being one year prior to the date upon which the alleged tweet was first pleaded.

In the circumstances the Court found that there was no need for a trial in relation to the Facebook and Twitter allegations as the plaintiff had no real prospect of establishing that they were accessed and downloaded by a third person on or after 6 July 2019 in order to bring them within the limitation period.

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