Introduction
Correct identification of what constitutes 'publication' is fundamental to establishing the tort of defamation and determining liability.
Fundamental Principles of Publication
Definition of 'Publication' in Defamation Law
Publication constitutes an essential element of the tort of defamation. In legal terms, "publication" means the communication of defamatory material to at least one person other than the plaintiff.
The act of publication is a bilateral process between the publisher and the recipient. It is only when a defamatory publication is comprehended by at least one third party reader that harm to reputation can occur. As Isaacs J explained in the seminal case of Webb v Bloch (1928) 41 CLR 331 at 363-364: "to publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle."
This bilateral conception was reinforced by the High Court in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, which confirmed that the tort occurs where and when the material is made available in comprehensible form to a third party. Critically, no communication to a third party means no publication in the legal sense.
Intention and Knowledge Requirements
The traditional test for establishing publication in Australian defamation law was formulated in Webb v Bloch (1928) 41 CLR 331. In that case, Isaacs J held that defamation requires an intention to assist in publication, stating that "if he has intentionally lent his assistance to its existence for the purposes of being published, his instrumentality is evidence to show a publication by him."
The High Court in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 affirmed and clarified that defamation operates as a tort of strict liability. The majority emphasised that there is no requirement of intention to publish defamatory material; mere participation in the act of publication is sufficient for an individual to be held to be a publisher. The intention of the author of the defamatory matter is not relevant to the question of publication because the actionable wrong is the publication itself. This reinforces the strict liability nature of the tort, which has significant implications for potential publishers.
Publication as an Element of the Cause of Action
For defamation actions in Western Australia, there are five elements to a cause of action:
Publication – broadly defined to include verbal statements and all statements that can be read.
Of defamatory content – content that would tend to lower the plaintiff in the estimation of ordinary reasonable members of society.
To another – the publication must be made to someone other than the plaintiff.
Identifying a person – the plaintiff must be identifiable from the content.
Without lawful excuse – if there is a legal reason for the publication, any defamation may be excusable.
Significantly, as at March 2025 Western Australia has not adopted the 2021 amendments to the Uniform Defamation Laws implemented in most other Australian jurisdictions. Consequently, Western Australia still applies the "multiple publication rule" rather than the "single publication rule" introduced elsewhere, and does not have the "serious harm" threshold requirement for defamation actions. These distinctions create important jurisdictional differences that practitioners must be mindful of when advising clients or determining proper forum.
Tests for Establishing Publication
The Webb v Bloch Test
The Webb v Bloch test remains the fundamental starting point for determining whether publication has occurred in Australian defamation law. Under this test, anyone who participates in the dissemination of defamatory content is a publisher. This includes all persons who intentionally lend assistance to the existence of a publication, regardless of whether they authored the defamatory content or had knowledge of its defamatory nature.
The mental element of the wrong is satisfied by an intention to assist in publication, rather than an intention to publish defamatory material or knowledge of a publication's defamatory content. This establishes a relatively low threshold for participation in publication that casts a wide net of potential liability.
Proof of Publication
The burden of proving publication rests with the plaintiff on the balance of probabilities. In Western Australia, as established in Sims v Jooste (No 2) [2016] WASCA 83, a plaintiff must plead and prove that the material complained of had been downloaded and viewed by somebody, though they need not provide particulars of the identity of the person or persons who downloaded the material.
The Western Australia Court of Appeal in Sims v Jooste (No 2) emphasised that an inference that material has been downloaded and viewed might be drawn from a combination of facts, such as the number of 'hits' on the site where the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. This approach of relying on a "platform of facts" recognises the practical difficulties in identifying specific recipients of online publications, whilst maintaining the fundamental requirement that publication must have occurred.
Publication by Omission
Publication may also occur through omission in certain circumstances. In Byrne v Deane [1937] 1 KB 818, the English Court of Appeal established that publication by way of omission may give rise to defamation liability. This means that a person can be responsible for publication of defamatory material by failing to remove it from where it was published, in circumstances where they had both knowledge of the material and the power to remove it.
This principle was applied in the Australian context in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Rep ¶81-127. In that case, unknown persons had glued up defamatory posters (falsely depicting the plaintiff as a Nazi sympathiser) on bus shelters under the Council's control. The Council, once notified, did not remove the posters for about a month. Hunt J held that the Council could be found liable as a publisher by omission, provided the evidence showed it had accepted responsibility for the continued publication of the material.
His Honour noted that a plaintiff must prove "more than mere knowledge" of the defamatory material and an opportunity to remove it. In addition, the plaintiff must show the defendant in some way adopted or ratified the continued presence of the material – for example, by consenting to it, approving it, or at least turning a blind eye such that their inaction amounts to acceptance. This nuanced approach to publication by omission has particular relevance in digital contexts, where platforms and website operators may become publishers by failing to remove defamatory content after being notified of its existence.
Co-publishers and Joint Publishers
Legal Definition of Co-Publishers
Co-publishers (or joint publishers) are two or more persons who each participate in the act of publishing the defamatory material. Following Webb v Bloch (1928) 41 CLR 331, a person is considered a publisher if they have been "instrumental in, or contributed to any extent to, the publication of defamatory matter."
This broad definition captures various participants in the publication chain, including:
Authors of the defamatory content
Editors who review and approve the content
Publishers who disseminate the content
Individuals who assist in drafting or revising the content
Those who facilitate the publication platform
It is well established that every person who joins in publishing a defamatory statement can be sued in defamation. Thus, liability extends beyond the original author to all who participate in making the defamatory content available to others. The High Court has confirmed that a publisher's liability does not depend on them intending to defame the plaintiff; it is sufficient that they intentionally participated in communicating the content.
Tests for Establishing Joint Publication
Joint publication liability arises when multiple parties have participated in the publication process with some common purpose or design. In examining whether a person is a joint publisher, courts will consider:
Whether the person had control over or assented to the publication
Whether there was a common intention in publishing
The extent of the person's participation in the publication process
Whether the person provided more than merely incidental assistance
Justice Edelman in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 noted that a defendant who does not perform an act of publication personally can still be liable for defamation on the basis that they assisted another individual who performed the act of publication, provided that the defendant's assistance occurred with a common intention to publish the communication.
Liability for Assisting with Drafting
Those who assist in drafting defamatory content can be held liable as co-publishers. As with other torts, assistance can be established by a minor act, provided there is a common intention to publish. This means that individuals who contribute to content that is later published may be liable alongside the primary publisher.
The critical factor is whether the individual intentionally participated in the creation process with the knowledge that the material would be published, not whether they intended the content to be defamatory. This principle applies to those who:
Contribute substantively to the content
Review and edit the material
Provide factual information that forms the basis of defamatory statements
Authorise or approve the final content for publication
In York v Jones [1981] 2 NSWLR 639, a person who supplied defamatory information that was later broadcast was joined as a defendant on the basis that he procured and aided the publication. This illustrates the court's willingness to hold accountable those who participate in the chain of publication, even where their role might appear secondary.
Common Intention in Publishing
The concept of common intention in publishing is central to establishing joint publication liability. While each case turns on its specific facts, courts will generally look for evidence of:
Collaboration in creating the content
Shared purpose in disseminating the material
Awareness that the content would be published
Approval or authorisation of the final publication
Justice Steward in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 considered that what constitutes participation in an action of publication is a question of fact, and agreed with Justice Edelman that the test of common intention is applicable to defamation.
Digital and Online Publication
Multiple and Single Publication Rules
Under the traditional "multiple publication rule" which still applies in Western Australia, each communication of defamatory matter gives rise to a separate cause of action. For publications made online, this means that each time the material is accessed, a new publication occurs, potentially extending the limitation period for bringing an action. This was confirmed in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, where the High Court emphasised that making material available online is not a mere one-time act with legal effect everywhere; rather, the act of publication is complete at the place and time a third party downloads and reads the material.
This differs from jurisdictions that have implemented the 2021 amendments introducing a "single publication rule," which provides that the cause of action in defamation is taken to accrue at the date of first publication. The practical effect of Western Australia's continued adherence to the multiple publication rule is significant for online publishers, as it creates ongoing exposure to defamation claims for historical content that remains accessible online.
Social Media and Website Publications
The landmark case of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 established that owners of social media pages can be liable as publishers for third-party comments posted on their pages. The High Court held that by creating a public Facebook page and posting content, the media outlets were "facilitating, encouraging and thereby assisting the posting of comments by third-party Facebook users" and were therefore publishers of those comments.
This decision adopts a strict approach – effectively, the act of providing an online forum (with the capacity to moderate content) was enough involvement to render the host liable as a publisher of whatever defamatory material appeared. Voller therefore stands as authority that Facebook page owners, moderators of online groups, and similar operators can be primary publishers of third-party content posted on pages under their control.
Worked Example: Media Organisation Facebook Page
Facts: A Western Australian media organisation operates a public Facebook page where it posts news articles. The organisation allows followers to comment on its posts. A Facebook user posts a comment on one of the organisation's articles containing defamatory allegations about a local politician. The politician sues both the Facebook user and the media organisation.
Analysis:
Following Voller [2021] HCA 27, the media organisation could be considered a publisher of the third-party comment by facilitating and encouraging comments on its Facebook page.
The media organisation's liability arises from its voluntary act of establishing and maintaining a Facebook page that invites and facilitates third-party comments.
The organisation's lack of knowledge of the specific defamatory comment does not prevent it being considered a publisher, as defamation is a tort of strict liability.
The media organisation might attempt to rely on the innocent dissemination defence, though this would require showing they neither knew nor ought reasonably to have known that the comment was defamatory, and that this lack of knowledge was not due to negligence.
Practical Guidance: Courts should consider:
Whether the defendant facilitated or encouraged third-party comments
The extent of control the defendant had over the platform
Whether the defendant took reasonable steps to monitor or moderate comments
The defendant's response upon becoming aware of the defamatory content
Hyperlinks and Search Engine Liability
The liability of search engines and providers of hyperlinks has been the subject of significant judicial consideration. In Google LLC v Defteros (2022) 96 ALJR 707, the High Court drew an important distinction regarding hyperlinks. The majority ruled that Google was not liable for simply providing a hyperlink in search results to a defamatory newspaper article. The Court reasoned that supplying a hyperlink (with a snippet) was merely a tool enabling users to access content, and did not itself amount to participating in the bilateral act of publication of that content.
The hyperlink was seen as a reference or pointer, not a communication of the defamatory matter. In other words, Google did not "lend assistance" to the publication of the article in any substantive sense by virtue of an automated search result. It had not created, endorsed, or republished the defamatory content – it simply provided the location.
However, this should be distinguished from cases where a person posts a hyperlink with commentary that adopts or endorses the defamatory content. In Bailey v Bottrill (No 2) [2019] NSWSC 1300, a defendant posted a link on her Facebook page to a YouTube video containing defamatory allegations, together with a comment implying agreement with the video. The court found that by doing so, the defendant took part in publishing the defamatory content – her post was an invitation to view the video and conveyed the defamatory message to anyone who followed the link.
The distinction is subtle but crucial: a neutral link might escape liability (per Defteros), but a link combined with an inducement or endorsement is actionable publication by the linker.
Primary and Subordinate Publishers
Distinguishing Between Categories of Publishers
Defamation law distinguishes between primary and subordinate publishers:
Primary publishers are those who know or can be expected to know the content of the material being published, including:
Authors of the defamatory content
Editors and publishers with editorial control
Media organisations responsible for content
Those who authorise or approve publication
Subordinate publishers are those who disseminate content created by others without editorial control, such as:
Newsagents and booksellers
Libraries and distributors
Internet service providers (in some circumstances)
Social media platforms (subject to notification and response)
This distinction is crucial for the availability of defences, particularly innocent dissemination, which is only available to subordinate publishers. In Emmens v Pottle (1885) 16 QBD 354, for example, a newspaper vendor who sold a paper containing a libel was found to have published it, even though he was unaware of the libel (his lack of knowledge went to a possible defence, not to the fact of publication).
Innocent Dissemination Defence
The defence of innocent dissemination is available the Defamation Act 2005 (WA). This defence is not available to the author and primary publisher of the material who have "primary liability" for what is written and published.
It is available to subordinate publishers who can demonstrate that:
They neither knew, nor ought reasonably to have known, that the matter was defamatory
This ignorance was not due to their own negligence
Indicators of whether someone is a primary publisher or a subordinate publisher include the opportunity to prevent publication and the editorial control over the publication process. Australian courts have established that if you have innocently published defamatory material, you must take reasonable steps to remove the defamatory material as soon as you are aware of it, otherwise you will be deemed to have published the material from that point onwards.
Proving Publication in Western Australian Courts
Requirements for Pleading Publication
In pleading publication, a plaintiff must establish that the defamatory material was published to at least one person other than the plaintiff. The statement of claim should include:
Particulars of the publication, including the date, mode, and medium of publication
Where the matter complained of is not defamatory on its face, the extrinsic facts said to give rise to the defamatory imputation
How persons knowing these facts would have understood the publication to refer to the plaintiff
In Western Australia, following Sims v Jooste (No 2) [2016] WASCA 83, courts have acknowledged that an inference that the material complained of has been downloaded by somebody might be drawn from a combination of facts, such as website metrics and duration of availability online.
Worked Examples
Worked Example: Republication of Defamatory Content
Facts: A Perth resident reads a defamatory article about a local business owner on an obscure blog. The resident copies the article and posts it on their personal social media account, adding comments that further distribute the defamatory claims. The business owner discovers the post and sues both the original blogger and the resident who shared the post.
Analysis:
The original blogger is clearly a primary publisher with full liability for the defamatory content.
The resident who shared the post is also a publisher, having voluntarily participated in disseminating the defamatory content.
By adding their own comments, the resident has adopted the defamatory content and become a primary publisher in their own right.
Repetition of defamatory content constitutes a separate act of publication. As established in common law, anyone who repeats defamatory publications is considered to have carried out a defamatory act in their own right.
Practical Guidance: Courts should consider:
The extent to which the republisher exercised independent judgment or editorial control
Whether the republisher added their own content or commentary
The republisher's knowledge of the potential defamatory nature of the content
Whether the republisher had reasonable grounds to believe the content was true or protected by a defence
Worked Example: Joint Drafting of Defamatory Letter
Facts: A Perth resident has a dispute with a neighbour. The resident drafts a letter containing allegations about the neighbour's conduct, including claims that would harm the neighbour's professional reputation. The resident shows the draft to a friend, who suggests additional allegations, edits the existing content, and helps refine the wording. The resident then sends the letter to the strata council and several other neighbours. The neighbour sues both the resident and the friend.
Analysis:
The resident is clearly a publisher as the primary author and distributor of the letter.
The friend may be liable as a co-publisher for substantially contributing to the content with knowledge that it would be published.
Their common intention to create and distribute the letter establishes joint publication liability.
The extent of the friend's contribution to the defamatory content and their awareness of its intended distribution are key factors in determining liability.
Practical Guidance: Courts should consider:
The nature and extent of the contribution to the defamatory content
Whether there was knowledge that the material would be published
Whether there was a common design or intention to publish
Whether the contribution was more than merely incidental
Conclusion
The act of publication remains a fundamental element in establishing defamation, and Western Australian courts apply principles drawn from foundational cases such as Webb v Bloch (1928) 41 CLR 331 while acknowledging the evolving landscape of communication, particularly in digital contexts. The broad test for publication means that liability can extend beyond original authors to encompass a wide range of participants in the publication process.
Co-publisher and joint publisher liability arises when multiple parties participate in the communication of defamatory matter, with courts focusing on the common intention to publish rather than intention to defame. This has significant implications for those who assist in drafting content, operate online platforms, or facilitate third-party comments.
In the digital age, the principles established in cases like Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 have extended publisher liability to previously untested contexts. This creates particular challenges for Western Australia, which continues to apply the multiple publication rule, potentially extending the limitation period for defamation actions involving online content.