ChatGPT has been a hot topic of conversation for the past couple of months. If you haven’t heard of it, ChatGPT uses artificial intelligence technology to do a range of things such as answer questions, write essays, prepare a script for a conversation etc.

This month, the mayor of Hepburn Shire in Victoria, Brian Hood, has announced he is preparing to sue Open AI (the owner of ChatGPT) for defamation. Hood alleges that ChatGPT named him as a guilty party in a foreign bribery scandal in the early 2000’s, when in fact he was the whistle blower and was never charged with any offence.

So, what is defamation? And can artificial intelligence platforms, such as ChatGPT, be successfully sued for defamation?

What is defamation?

Each state is Australia has a defamation act, which are substantially similar. In WA, defamation is covered by the Defamation Act 2005. Defamation is a tort rather than a crime, meaning it is not a criminal offence.

Defamation essentially relates to false publications that damage, or have the potential to damage, a person’s reputation. To be successful in suing someone for defamation, you need to prove the following:

  1. The material is defamatory

Defamatory material is material (images or words) that are false and that can be damaging to a person’s reputation. It doesn’t have to have caused actual quantifiable harm to be defamatory.

  1. The defamatory material identifies you

If you establish that the material is defamatory in nature, you then need to show that it identifies you. To be able to say that the words and/or images identify you, it must be clear that you are the subject of the material, but it doesn’t need to explicitly say your name.

  1. The material has been published

Publication does not only mean publication in a newspaper or on television or radio. If the material has been shown to a third party (ie. someone other than you and the creator of the material) it will be deemed to have been published for the purposes of determining defamation.

There are some defences to defamation, including parliamentary privilege, fair comment and truth.

Can ChatGPT be successfully sued for defamation?

If we look at the three elements of defamation detailed above, it would appear on face value that Brian Hood has been defamed. False statements were made that are harmful to his reputation, they identify his name and they were published.

However, ChatGPT has not been sued for defamation before and until a court makes a decision on the matter, we can’t give a definite answer. This defamation case will be a landmark case that sets the tone for ChatGPT and other artificial intelligence platforms moving forward.

Another interesting factor that may come into play in this case is a comparison between ChatGPT and social media. In 2019, the Supreme Court of NSW and the Supreme Court of NSW Court of Appeal held that owners of Facebook pages can be held responsible not only for their own posts but also for comments on their posts, for the purposes of defamation. For example, if a business makes a post on their Facebook page and someone writes a defamatory comment on their post, the business itself could be sued for defamation.

It will be interesting to see what the court says about the relationship between OpenAI and the material that is published on the platform they own.

About the authors: This article has been co-authored by Chelsea McNeill and Steven Brown. Chelsea is a lawyer that graduated from Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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