Introduction

The recent decision of Munro v Wheeler (No 3) [2025] NSWDC 3 highlights the fundamental challenges that can arise in proving publication in defamation cases, particularly those involving social media.

The case involved two plaintiffs (a veterinarian and her friend) who sued two defendants (a dog owner and a "pet detective") over Facebook posts alleging they had stolen a puppy named Teddy.

The plaintiffs claimed they merely found the wandering puppy and were trying to help, while the defendants posted material suggesting more nefarious motives.

Despite the considerable volume of material before the court, the plaintiffs' claim failed at the critical first hurdle—proving that the allegedly defamatory material was actually published in the form claimed.

The Fundamental Requirement of Publication

Publication is an essential element of any defamation action. It requires more than just showing that defamatory words were made available—it requires proof that at least one third party actually downloaded and comprehended the material.

As Justice Gibson noted in Munro v Wheeler:

"The plaintiffs must establish that the matters complained of were read by a person who downloaded the matter complained of, not merely a part of it." (at [123]). (NOTE: However, contrast this with a finding of a platform of facts from which it could be inferred publication had occurred).

The bilateral nature of publication was emphasized in the defendants' pleadings, which acknowledged that they had "made available for publication" the material, but did not admit that any third party had actually read the entire publications as pleaded. Making material available is only "the first step of a two-step process" (at [143]). Without evidence that someone actually downloaded and read the publication in the form alleged, the publication element failed.

Special Challenges of Social Media Publications

Social media platforms present unique challenges for proving publication in defamation cases. Unlike traditional media with fixed content, social media is characterized by:

Fluidity and impermanence: Posts and comments appear and disappear, making reconstruction difficult.
Non-sequential reading: Users rarely read entire threads in the exact order presented.
Personalization: What appears on one user's feed may differ from another's due to algorithms and privacy settings.
Post-publication editing: Content can be modified after initial publication.
Variable presentation: Different devices and settings may display content differently.

As noted in the English case Stocker v Stocker [2020] AC 593, social media is consumed differently from traditional publications. Courts must adapt to the "conversational and impressionistic" nature of social media, where readers:

"...do not pore over the literal meaning of each word or the grammar of each phrase or sentence... they scroll through messages relatively quickly and move on." (cited in Bazzi v Dutton (2022) 289 FCR 1 at [29])

The Perils of "Constructed" Publications

Munro v Wheeler demonstrates a common mistake in social media defamation cases—suing on artificially constructed compilations rather than actual publications. The plaintiffs presented two exhibits (A and B) comprising 70 and 40 pages respectively of hundreds of screenshots, often out of chronological order, with multiple copies and poor quality reproduction.

Justice Gibson observed that these exhibits were not documents "anyone ever published on Facebook, but a collection of hundreds of screen shots, out of chronological order and consisting of multiple copies" (at [66]). The problem was compounded when witnesses called to establish publication had seen a different 43-page version, not the exhibits claimed to be the defamatory publications.

This approach mirrors the problems encountered in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the plaintiffs similarly failed to establish that the artificial constructions they sued upon had ever been downloaded in that form.

Identifying the Publication with Precision

Courts have long emphasized the need to precisely identify what constitutes the defamatory publication. As Justice Bromwich explained in Hayson v Nationwide News Pty Ltd [2019] FCA 81:

"The plaintiff must identify the matter complained of in the precise form which is alleged to be defamatory of them, and... prove publication... in that form." (cited in Munro v Wheeler at [136])

This principle is even more important in the digital context, where evidence must establish both the content of the publication and that it was downloaded in substantially the same form as alleged. In Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383, Justice Tottle emphasized that plaintiffs must prove the complete publication was downloaded, not merely parts of it.

Fatal or Material Variance

When significant differences exist between what was allegedly published and what can be proven, courts may dismiss claims on that basis alone. This concept was historically known as "fatal variance" in English decisions (see Gatley on Libel and Slander, 12th ed, [32.15]).

While the NSW Court of Appeal in Brien v Mrad [2020] NSWCA 259 rejected this concept as overly rigid, Justice Gibson observed that where there is a "material" difference between the document alleged to have been published and what was actually published, this can be fatal to the claim.

The Queensland Court of Appeal recently addressed this issue in Surie v MacDonald [2024] QCA 254, where minor differences between an email and a letter did not amount to a material variance. By contrast, in Munro v Wheeler, the differences were so substantial that no publication could be established.

Practical Advice for Practitioners

Given the challenges highlighted in Munro v Wheeler, practitioners handling social media defamation cases should consider the following:

Capture accurate evidence promptly: Social media content can vanish or change rapidly. Secure proper forensic captures of the exact publication as soon as possible.
Sue on actual publications: Avoid constructing artificial compilations. Instead, identify discrete posts or clearly defined threads that represent actual publications.
Establish downloading evidence: Ensure witnesses can testify to downloading and reading the specific publications sued upon, not merely similar or partial content.
Be precise about imputations: Clearly identify which parts of the publication give rise to each imputation, particularly when dealing with lengthy social media threads.
Consider liability alternatives: In appropriate cases, consider suing on republications or pursuing alternative claims like injurious falsehood or misleading conduct.

Conclusion

Munro v Wheeler serves as a stark reminder of the fundamental importance of establishing publication in defamation actions. As Justice Gibson noted, even where serious allegations about plaintiffs were demonstrably made, failure to properly identify and prove publication of the matter complained of can be fatal to a claim.

The case highlights that while the principles underlying defamation law remain consistent, proving publication in the digital age requires careful attention to the unique characteristics of online communication. Practitioners must adapt their approach to ensure that what is pleaded reflects what actually appeared on screen and what was actually downloaded by third parties.