Introduction
The decision of Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383 provides useful guidance on the principles applicable to establishing publication in defamation cases involving online content.
Facts
In Poland v Fairfax, the plaintiff Mr Poland sued the defendant Fairfax over comments posted by third parties on the defendant's Facebook page under links to two articles about the plaintiff.
The comments were posted in February 2019 but Mr Poland only commenced proceedings in September 2021. Due to the 1 year limitation period, Mr Poland was confined to suing for publication of the comments between 10 September 2020 and 10 September 2021.
The defendant applied to strike out the publication pleas on the basis that the facts pleaded could not establish publication in that period.
Tottle J dismissed the strike out application but raised the possibility of determining publication as a preliminary issue.
What is 'publication' in defamation?
The High Court has held that for online material, publication occurs at the place where the material is downloaded onto a person's computer in comprehensible form:
"In the case of material on the world wide web it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then that will be the place where the tort of defamation is committed." (Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ)
Therefore, it is not sufficient merely to show that material was posted online and was available to be viewed.
There must be actual downloading and comprehension of the material.
No inference from mere availability online
An inference of publication will not be drawn solely from the fact that material was posted online and could have been viewed:
"Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site." (Sims v Jooste [No 2] [2016] WASCA 83 at [18] per Martin CJ).
Platform of facts can support inference
However, publication may be established by pleading and proving a platform of facts from which an inference of downloading and comprehension can properly be drawn:
"Although publication will not be inferred from the mere fact that material complained of has been posted on a website, an inference that the material has been downloaded by someone might be drawn from a combination of facts such as the number of 'hits' on the relevant website and the period of time over which the material was posted on the internet." (Lorbek v King [2022] VSC 218 at [46] per McDonald J)
"This has been recognised in the cases to which I will now refer. In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn." (Sims v Jooste [No 2] [2016] WASCA 83 at [18] per Martin CJ).
Examples of platform of facts
In Stoltenberg v Bolton [2020] NSWCA 45, the platform of facts comprised:
Evidence of number of views/hits on website and Facebook page where material posted
Period of time material remained available
Facebook posts by defendant about wide readership
Witnesses speaking of reading material
This is as per:
"The 'platform of facts' from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of 'hits' on the Narri Leaks site - 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent 'boosting' posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 'locals' out of a 'total reach' of 2,414 hit the 'Like' button; the inferences drawn from the Facebook records as to 'reach' of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour's findings that the matters complained of were published by Mr Stoltenberg." (Stoltenberg v Bolton at [113] per Gleeson JA)
In Lorbek v King [2022] VSC 218 at [46], McDonald J gave the example of screenshots demonstrating 'likes' or responses to material as potentially supporting an inference of publication.
Policy behind requiring evidence of actual downloading
The requirement to prove downloading, as opposed to mere availability online, reflects the policy behind the law of defamation - that damage to reputation occurs at the place where material is read in comprehensible form:
“In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged." (Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ)
Need to plead where publication occurred
A plaintiff must plead sufficient facts to establish not only that publication occurred, but also where it occurred. This is because choice of law rules require the substantive law to be applied based on where publication took place:
"At the moment it is clear that the plaintiff is simply unable to indicate who, if anyone, downloaded those publications and if they have there is then no specificity as to which jurisdiction they have been downloaded in. That level of detail is vital both in terms of determining the elements of the cause of action, but also in fairness to the defendant by way of indicating what, if any, defences might be available depending upon the jurisdiction in which it can ultimately be proved such publication took place." (Newman v Whittington [2022] NSWSC 249 at [19] per Sackar J)
Application to Poland v Fairfax
In Poland v Fairfax, Tottle J considered that while the plaintiff's pleading may have been sufficient to avoid strike out, pleading publication in 'Australia' was too wide and should be confined to Western Australia.
Some doubts were expressed about the strength of the plaintiff's plea:
"In my view there is force in the defendant's contentions, however, the issue of publication is a factual one. The defendant's contentions about the way in which elements of its online presence work together and the manner in which members of the public engage with its Facebook page rely, to a certain extent at least, on assertion." (Poland v Fairfax at [25] per Tottle J)
However, Tottle J was reluctant to strike out the pleading entirely as being reasonably arguable.
Conclusion
The case law establishes that to prove publication of online material, a plaintiff must show the material was downloaded and comprehended by a third party. Mere availability online is not enough. However, a platform of facts may allow the court to infer downloading and comprehension occurred. Care must be taken to confine the place of publication appropriately. The facts in each case will determine whether an inference of publication is available.