In defamation law, innocent dissemination serves as a defence for parties who unknowingly distribute defamatory material.
This defence is available to subordinate distributors who can prove that they neither knew nor ought reasonably to have known the material was defamatory and that their lack of knowledge was not due to negligence.
In this blog post, I explore the principles of innocent dissemination as a defence, referencing key cases that have shaped the understanding of this concept in defamation law.
Innocent Dissemination at as a confession and avoidance defence
Innocent dissemination is a common law defence in defamation cases.
This defence operates by acknowledging the facts that establish the legal elements of defamation, but then avoids liability by demonstrating a justification or excuse.
The defence of innocent dissemination is well-established and has been discussed in numerous cases, such as Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574.
Requirements for the Defence
To rely on the defence of innocent dissemination, a distributor must prove three things:
They were a subordinate distributor of the defamatory material.
They neither knew nor ought reasonably to have known that the material was defamatory.
Their lack of knowledge was not due to any negligence on their part.
Innocent Dissemination and Electronic Material
The defence of innocent dissemination has been extended to electronic material, as acknowledged in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. This means that distributors of electronic material may also rely on this defence if the circumstances permit.
Key Cases
In the recent decision of Duffy v Google LLC [2023] SASC 13, the defence of innocent dissemination was discussed in relation to the search engine giant, Google. This case relied on earlier decisions, such as Trkulja v Google LLC (2018) 263 CLR 149 and Google LLC v Defteros (2022) 403 ALR 434, which helped shape the understanding of innocent dissemination in the context of online platforms.
Key take-aways
Innocent dissemination remains a crucial defence in defamation law, particularly as technology continues to advance and the distribution of electronic material becomes more prevalent.
The defence allows subordinate distributors to avoid liability if they can prove that they neither knew nor ought reasonably to have known that the material they distributed was defamatory, and that their lack of knowledge was not due to negligence.
Cases mentioned in this blog:
Duffy v Google LLC [2023] SASC 13
Google LLC v Defteros (2022) 403 ALR 434
Trkulja v Google LLC (2018) 263 CLR 149
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574