A fundamental aspect of defamation is the act of publication, which is when the defamatory material is made available to a third party.
In this blog post, I discuss the principles of publication in defamation law, drawing upon the recent decision of Google LLC v Defteros [2022] HCA 27 and other key cases.
Publication of Defamatory Matter – Principles
The law surrounding publication in defamation is considered "tolerably clear" (Trkulja v Google LLC).
The principles relating to the publication of defamatory matter were first established in Webb v Bloch and later affirmed by the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller.
Intentionality in Publication
In the Voller case, the Court examined the requirement of the common law of defamation that the publication of defamatory matter must be “intentional”.
The Court held that all that is required for intentionality, is that the defendant's act of participation in the publication be voluntary.
Publication and Liability as a Publisher
The majority in Voller further explored what the law requires for there to be a publication and for a person to be liable as a publisher.
Publication is described as the actionable wrong in defamation, by which harm is caused to a person's reputation.
It is a technical term, referring to a bilateral act where the publisher makes the defamatory material available and a third party has it available for their comprehension.
Publication can also be understood as the process by which a defamatory statement or imputation is conveyed.
Following the principles in Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge.
This means that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is considered a publisher.
Key take-aways
The act of publication is a critical element in defamation law.
The principles of publication established in Webb v Bloch and affirmed in Voller provide guidance on what is required for a person to be liable as a publisher.
Understanding these principles is essential for defamation lawyers and anyone seeking to navigate this complex area of law.
Cases referred to in this blog post:
1. Google LLC v Defteros [2022] HCA 27
2. Trkulja v Google LLC [2018] HCA 25
3. Webb v Bloch (1928) 41 CLR 331
4. Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767; 392 ALR 540