Proving Extent of Publication in Defamation Proceedings

1. Introduction

The extent of publication is a fundamental element in defamation proceedings that influences both liability and the assessment of damages. A precise understanding of how to evaluate and prove publication extent is essential, particularly given the evolving media landscape and recent legislative reforms. This section provides guidance on the principles and evidentiary considerations relevant to determining the extent of publication in defamation matters, with particular attention to Western Australian jurisprudence where applicable.

2. Publication: Fundamental Principles

2.1 The Bilateral Nature of Publication

Publication in defamation law is a bilateral process requiring both the communication of defamatory matter by a publisher and its comprehension by at least one third party. As the High Court observed in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [26]:

"Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act—in which the publisher makes it available and a third party has it available for his or her comprehension."

This bilateral conception has implications for proving both the fact and extent of publication. It means that publication is not complete until the defamatory matter has been both communicated and comprehended. This requires plaintiff’s to adduce evidence not merely of dissemination but also of reception and understanding by third parties.

2.2 Single Publication Rule

It is important to note that the single publication rule does not currently (as at March 2025) apply in Western Australia. Consequently, in Western Australia, the multiple publication rule established in Dow Jones & Company Inc v Gutnick continues to apply. This means that each download of defamatory material constitutes a separate publication, with its own cause of action.

3. Proving Fact of Publication

Before addressing extent, it is necessary to establish the fact of publication. The plaintiff bears the legal burden of proving that:

1. The defamatory matter was communicated to at least one person other than the plaintiff;

2. That person comprehended the communication; and

3. The publication was the intended, or the natural and probable, consequence of the defendant's actions.

In Lazarus v Deutsche Lufthansa AG (1985) A Def R 36-401, Hunt J emphasised that the plaintiff bears the onus of proving publication and must establish not only that the defamatory matter was accessible to third parties but that it was in fact accessed and comprehended by them.

As stated in Sims v Jooste (No 2) [2016] WASCA 83, a plaintiff must demonstrate, by pleading, that the material was downloaded and viewed by at least one person. This Western Australian authority underscores the necessity of establishing actual communication to and comprehension by a third party.

3.1 Direct Evidence of Publication

The most straightforward way to prove publication is through direct evidence, which may include:

• Testimony from recipients who read, heard, or viewed the defamatory material

• Admission by the defendant of publishing the material to specific individuals or groups

• Documentary evidence of distribution (email logs showing recipients, distribution lists, etc.)

• Server logs or analytics data showing specific access to the particular content

Worked Example: A sends a defamatory email about B to C. C testifies in court that they received and read the email, understanding its defamatory meaning. This is direct evidence of publication to C.

3.2 Inferential Evidence of Publication

Direct evidence of publication is not always available, particularly with online publications. In such cases, the plaintiff may rely on inferential evidence to establish a "platform of facts" from which publication can be reasonably inferred. The Court of Appeal in Sims v Jooste (No 2) [2016] WASCA 83 confirmed that this approach is available in Western Australia.

However, mere speculation is insufficient. The plaintiff must present a compelling factual foundation from which the court can infer publication.

Worked Example (Insufficient Evidence): A posts a defamatory comment about B on a website hosted overseas. B provides evidence that the website has 10,000 visitors per month globally. This, alone, is likely insufficient to prove publication in Western Australia. There is no evidence that any of those visitors were in Western Australia or that they saw the specific comment.

Worked Example (Sufficient Evidence): A posts a defamatory comment about B, a Perth-based businessman, on a website hosted overseas. B provides evidence that: (a) the website has 10,000 visitors per month, and 2,000 of those visitors are from Australian IP addresses; (b) the comment was visible on the website for three months; (c) the comment received 50 "replies" from other users, some of whom appear to be based in Perth (based on their usernames and profile information); and (d) several of the replies specifically discuss the defamatory imputation and its impact on B's business in Perth. This combination of factors creates a strong inference that the comment was downloaded and comprehended by at least one person in Western Australia.

4. Proving Extent of Publication

Once the fact of publication is established, attention turns to its extent. This is relevant to the quantum of damages. The following considerations apply in different publication contexts:

4.1 Print Publications

For print publications, evidence of the following may be adduced:

• Circulation figures (official audited figures are preferable)

• Distribution area (with particular attention to the plaintiff's community of interest)

• Readership estimates (which may exceed circulation)

• Whether the publication was prominently placed (e.g., front page versus buried on page 20)

• Whether the publication appeared in a specialist publication with a particularly influential readership among peers of the plaintiff

As held in Attrill v Christie [2007] NSWSC 1386, the extent of publication may be proved by inference from circulation figures, and the court may infer that a substantial proportion of readers actually read the material in question.

Worked Example: In a defamation action concerning an article in a major metropolitan newspaper, evidence might include the newspaper's audited circulation figures (approximately 100,000 copies), readership multiplier (estimated 2.5 readers per copy), distribution throughout metropolitan and regional areas of the state, and particulars about the prominence of the article (front page above the fold versus an inside page). The court may infer that a substantial proportion of the readership comprehended the defamatory matter, particularly if it was prominently placed.

4.2 Online Publications

For online publications, relevant evidence may include:

• Number of unique visitors to the specific webpage containing the defamatory material

• Average time spent on the page (as a proxy for comprehension)

• Geographical location of visitors (particularly important for establishing jurisdiction in Western Australia)

• Prominence in search engine results when searching for the plaintiff's name

• Social media engagement metrics (shares, comments, likes)

• Expert evidence on typical reading patterns for the type of content

It is important to note that analytical data showing mere page impressions or views may not, without more, be sufficient to establish comprehension by third parties. As established in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350, more detailed evidence about engagement with the content may be necessary to satisfy the bilateral nature of publication.

Worked Example: In a case concerning a defamatory article on a news website, analytics data might show 5,000 page views, with 3,750 visitors from Western Australia, an average time on page of 2.5 minutes (suggesting the content was read rather than merely glimpsed), and 127 social media shares. A court might accept this evidence as establishing substantial publication within Western Australia, particularly if supported by expert evidence that the average time spent on the page exceeds the minimum time necessary for a typical reader to comprehend the defamatory content.

4.3 Social Media Publications

For social media publications, relevant considerations include:

• Number of followers/friends/connections of the publisher

• Number of views, likes, comments, or shares

• Whether the post was public or restricted to a defined audience

• Duration of availability before removal (if applicable)

• Evidence of republication through sharing, screenshots, or archiving

• Expert evidence on algorithmic amplification within the platform

In Wilson v Ferguson [2015] WASC 15, Mitchell J considered the extent of publication in relation to intimate images shared on Facebook, taking into account not only the direct recipients but also the potential for further dissemination. His Honour noted at [79] that the "grapevine effect" was particularly potent in the context of social media publications.

Worked Example: In a matter involving a defamatory Facebook post, evidence might include the defendant's friend count (2,500), engagement metrics (45 likes, 23 comments, 12 shares), public accessibility settings, and duration of availability (3 months before removal). Expert evidence might also establish the likely amplification through the Facebook algorithm, which may have shown the content to users beyond the defendant's immediate connections based on engagement levels.

5. Evidentiary Challenges

5.1 Inferential Reasoning

Courts may draw inferences about the extent of publication based on circumstantial evidence. As Hunt J observed in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 at 69,193:

"Where the plaintiff has established that the defendant published the statement to a limited class of persons only, the court will infer, in the absence of evidence to the contrary, that all persons within that class both received and read the statement."

This principle is useful for assessing publication in traditional media contexts. However, in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, the NSW Court of Appeal emphasised that while inferential reasoning is permissible, it must have a proper evidentiary foundation and not amount to speculation.

It is important for Western Australian practitioners to note that inferential reasoning may be particularly appropriate in regional or remote communities, where media consumption patterns may differ from metropolitan areas.

5.2 Online Publication Challenges

Proving the extent of online publication presents unique challenges. While analytics data can provide quantitative evidence, it may not definitively establish comprehension. Judges should critically evaluate:

• The reliability and authentication of analytics evidence

• Whether metrics demonstrate actual reading versus mere impressions

• The methodology employed by expert witnesses in interpreting online data

• The relationship between technical data and actual comprehension

• The relevance of the data to the specific defamatory content (as opposed to the webpage generally)

In Al Muderis v Duncan (No 3) [2017] NSWSC 726, McCallum J accepted expert evidence regarding internet analytics to determine the extent of publication of defamatory material online. Importantly, her Honour scrutinised the methodology behind the analytics and required evidence that went beyond mere page views to establish that the defamatory content had been comprehended.

5.3 Grapevine Effect

The "grapevine effect" recognises that defamatory material may spread beyond its initial publication through informal channels. In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88], the High Court acknowledged that a plaintiff may recover damages for the spread of defamatory imputations through the "grapevine," even without strict proof of each instance of republication.

For Western Australian practitioners, it is worth noting that evidence of the potential for grapevine dissemination is particularly relevant in regional communities, where information may spread rapidly through informal networks. This phenomenon was recognised in West Australian Newspapers Ltd v Elliott [2008] WASCA 172, where the Court of Appeal acknowledged the amplified impact of defamatory publications in smaller, close-knit communities.

Importantly, in Zimmerman v Perkiss [2022] NSWDC 448, the court considered that the lack of the "grapevine effect"—the absence of evidence that others discussed the defamatory material with each other—was a factor in assessing the extent of harm to the plaintiff's reputation.

However, care should be taken to distinguish between the grapevine effect (which concerns damages for foreseeable further dissemination) and direct liability for republication by third parties. As clarified in Sims v Wran [1984] 1 NSWLR 317, a defendant is generally not liable for republication unless it was specifically authorised or was the natural and probable consequence of the original publication.

6. Publication by Omission

Courts distinguish between publication occurring by way of a positive act and publication occurring through omission. For publication by omission, the test is whether the defendant consented to, approved of, adopted, promoted, or in some way ratified the continued presence of defamatory material.

This principle was articulated in Byrne v Deane [1937] 1 KB 818 and developed in the Australian context in Thompson v Australian Capital Television (1996) 186 CLR 574. More recently, in Trkulja v Google LLC (2018) 263 CLR 149, the High Court considered the potential liability of search engines for failing to remove defamatory search results after being notified of their existence.

The question of publication by omission becomes particularly important in the context of user-generated content on websites, forums, and social media platforms. The defence of innocent dissemination under s 32 of the Defamation Act 2005 (WA) may be negated if the defendant fails to take reasonable steps to remove defamatory material after being notified of its existence.

Worked Example: A Western Australian website owner receives notification that user-generated content on their site contains defamatory material about a Perth businessperson. If they fail to remove it within a reasonable time after being notified (what constitutes "reasonable" will depend on the circumstances, including the technical complexity of removal and the resources of the website owner), they may be liable as a publisher by omission, having effectively adopted responsibility for the continued publication.

7. Jurisdictional Considerations

For Western Australian judges and practitioners, it is important to note that under the multiple publication rule established in Dow Jones & Company Inc v Gutnick, defamation occurs wherever the material is downloaded and read. This means that Western Australian courts have jurisdiction over defamation actions where the material was accessed in Western Australia, regardless of where it was uploaded.

As confirmed in Crosby v Kelly [2012] FCAFC 96, Australian courts retain jurisdiction over defamation actions where publication occurs within Australia, regardless of the original location of the publisher.

Western Australian practitioners should be particularly attentive to:

• Establishing evidence of access within Western Australia

• The continuing application of the multiple publication rule in Western Australia

• Potential conflict of laws issues for interstate and international publications

• The practical difficulties of enforcing judgments against interstate or international defendants

8. Particulars of Publication

While the plaintiff does not necessarily need to identify the specific individuals who accessed the defamatory material, providing particulars of downloading is now general practice in Western Australia. As noted in Sims v Jooste (No 2) [2016] WASCA 83, the court may require the plaintiff to provide further and better particulars if the initial pleading is vague or insufficient.

These particulars should address:

• When and where the material was published

• The identity or class of the recipients (if known)

• Evidence supporting the inference of publication (for inferential cases)

• The extent of publication claimed

• The jurisdictional nexus with Western Australia

9. Procedural issues for Evidentiary Management

When seeking to use the forensic tools available in a court case, in relation to evidence regarding publication extent, parties should consider:

1. Orders (such as leave to issue interrogatories) seeking specific disclosure of analytics data for online publications, including raw data to allow for expert analysis

2. Requiring expert evidence on digital distribution mechanisms where necessary, with attention to the expert's methodology and assumptions

3. Considering whether sampling methods might be appropriate for establishing patterns of publication in cases involving voluminous material

4. Setting parameters for inferential reasoning about publication extent

5. Requiring particulars of the grapevine effect where it is pleaded

6. Directing that evidence address not merely dissemination but also comprehension by recipients

In complex matters involving multiple publication platforms, it may be appropriate to direct the preparation of a publication schedule that clearly identifies each publication, its extent, and the evidence supporting those contentions.

10. Conclusion

Proving the extent of publication involves both factual and inferential reasoning, underpinned by an understanding of the bilateral nature of publication. The emergence of digital media has complicated this assessment but has also provided new evidentiary tools. Western Australian judges and practitioners should approach these questions with careful attention to both traditional principles and emerging digital realities.

The extent of publication remains a critical factor in assessing damages in defamation proceedings. As the media landscape continues to evolve, so too will the evidentiary approaches to establishing publication extent. Judges and practitioners should remain attuned to developments in this area, particularly as courts grapple with the implications of social media algorithms, ephemeral content, encrypted messaging platforms, and artificial intelligence-generated content.

For Western Australian practitioners, particular attention should be paid to regional and remote publication contexts, the continuing application of the multiple publication rule, and the developing jurisprudence as it relates to publication extent.

Publication in Defamation Law

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:

1. Publication – broadly defined to include verbal statements and all statements that can be read.

2. Of defamatory content – content that would tend to lower the plaintiff in the estimation of ordinary reasonable members of society.

3. To another – the publication must be made to someone other than the plaintiff.

4. Identifying a person – the plaintiff must be identifiable from the content.

5. 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:

1. Whether the person had control over or assented to the publication

2. Whether there was a common intention in publishing

3. The extent of the person's participation in the publication process

4. 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:

1. Whether the defendant facilitated or encouraged third-party comments

2. The extent of control the defendant had over the platform

3. Whether the defendant took reasonable steps to monitor or moderate comments

4. 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:

1. Particulars of the publication, including the date, mode, and medium of publication

2. Where the matter complained of is not defamatory on its face, the extrinsic facts said to give rise to the defamatory imputation

3. 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:

1. The extent to which the republisher exercised independent judgment or editorial control

2. Whether the republisher added their own content or commentary

3. The republisher's knowledge of the potential defamatory nature of the content

4. 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:

1. The nature and extent of the contribution to the defamatory content

2. Whether there was knowledge that the material would be published

3. Whether there was a common design or intention to publish

4. 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.

Common Law Qualified Privilege in Defamation: An explanation

1. Introduction and Legal Foundation

Common law qualified privilege stands as a conditional defence in defamation, rooted in the recognition that certain communications, though potentially defamatory, warrant protection for societal benefit. This defence traces its origins to Toogood v Spyring (1834) 149 ER 1044, where Baron Parke articulated that "communications which would otherwise be slanderous are protected for the common convenience and welfare of society." This principle has been consistently affirmed in Australian jurisprudence, most authoritatively by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366.

The defence operates by providing a rebuttable presumption that a defamatory communication made on a properly privileged occasion was without malice. Unlike absolute privilege (which provides unqualified immunity regardless of motive or circumstances), qualified privilege is contingent upon two critical elements:

1. The existence of a privileged occasion for the communication; and

2. The absence of malice in making that communication.

The theoretical justification for this defence lies in balancing competing public interests: protecting individual reputation against the social utility of uninhibited communication in certain contexts. As the High Court observed in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at [30], the law recognizes that "on certain occasions, it is for the common convenience and welfare of society to protect communications made in a particular manner, even though they would otherwise be actionable." This defence thus acknowledges that public policy sometimes necessitates free and frank communication, even at the potential expense of individual reputation, provided such communications remain within the boundaries of the privileged occasion and are not made maliciously.

2. Elements of the Defence

2.1 Privileged Occasion: The Reciprocity of Duty/Interest

The threshold requirement for common law qualified privilege is establishing that the publication occurred on a privileged occasion. This necessitates demonstrating a reciprocity of duty and interest between publisher and recipient—often termed the "duty/interest test."

The High Court in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 reaffirmed this fundamental principle, stating at [20]:

"For an occasion to be held to be privileged, there must exist between the publisher and the publishee some relationship or circumstance that gives rise to a duty or interest to communicate or receive information."

The requisite duty may be legal, social, or moral in nature, while the corresponding interest must be legitimate and relevant to the recipient's position. Importantly, both elements must coexist for the occasion to be privileged.

The concept of "duty" in this context extends beyond formal legal obligations. As explained in Adam v Ward [1917] AC 309 at 334 (and adopted in Australian law), it encompasses "a duty recognized by law, a duty of a moral or social character of imperfect obligation." However, not every moral impulse or sense of obligation will suffice; the duty must be one that the law recognizes as proper and deserving of protection.

Example 1:
A school principal reviews complaints about a teacher's conduct with the school board. This communication occurs on a privileged occasion because:

• The principal has a duty (both professional and moral) to inform the board about issues affecting student welfare and educational standards

• The board members have a corresponding interest in receiving this information given their governance responsibilities

• Both share a common interest in the proper functioning of the school and fulfillment of their educational obligations

The High Court in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 emphasized that the duty/interest test must be applied with precision to the specific circumstances of each case, rather than through mechanical application of categories. The inquiry is always contextual and evaluative.

2.2 Absence of Malice

Even when a publication occurs on a privileged occasion, the defence can be defeated if the plaintiff proves the defendant was actuated by malice. The concept of malice in this context has a specific legal meaning distinct from its colloquial usage.

As articulated by the High Court in Roberts v Bass (2002) 212 CLR 1 at [75]-[76]:

"A privileged occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement... Qualified privilege is lost if the defendant uses the occasion for some purpose other than that for which the occasion was privileged."

Malice thus refers to the defendant's improper purpose or motive—one foreign to the occasion that would otherwise attract privilege. The critical inquiry is not merely whether the defendant bore ill-will toward the plaintiff, but whether an improper purpose was a substantial actuating factor in making the communication.

This distinction is crucial: a defendant may harbor animosity toward the plaintiff yet still be protected if their dominant purpose was to fulfill the duty/interest that created the privileged occasion. Conversely, a defendant without personal animus may nevertheless act maliciously if motivated by a purpose extraneous to the privilege.

2.3 Onus and Pleading Requirements

The distribution of the burden of proof reflects the structure of the defence:

1. The defendant bears the legal and evidentiary onus of establishing that the publication occurred on a privileged occasion.

2. Once a privileged occasion is established, the onus shifts to the plaintiff to prove that the defendant was actuated by malice.

Procedurally, this requires precise pleading from both parties:

• A defendant pleading qualified privilege must particularize the facts giving rise to the privileged occasion, including the specific duty/interest relationship and the circumstances establishing reciprocity between publisher and recipient.

• A plaintiff seeking to defeat the defence must specifically plead malice in the Reply, with particulars of the facts, matters, and circumstances said to evidence improper purpose.

The requirement for particulars is not merely procedural; it defines the scope of the issues at trial. As held in David Syme & Co v Hore-Lacy (2000) 1 VR 667, the plaintiff must provide sufficient particulars to give the defendant fair notice of the case to be met regarding malice. Failure to properly particularize malice may result in that issue being excluded from consideration at trial.

3. Categories of Privileged Occasions

While each case must be evaluated on its specific circumstances, courts have recognized several recurring situations that typically satisfy the duty/interest test. These categories provide useful guidance but are not exhaustive or determinative; the underlying principle of reciprocity remains paramount.

3.1 Communications Made Pursuant to Legal, Moral, or Social Duty

When a person has a legal, moral, or social duty to communicate information, and the recipient has a corresponding interest in receiving it, the occasion is privileged.

Example 2:
In Cush v Dillon (2011) 243 CLR 298, the High Court considered communications made by a senior staff member to a minister about allegations concerning a departmental head. The Court recognized this as a potentially privileged occasion because the staff member had a duty to inform the minister about matters affecting departmental governance, and the minister had a corresponding interest in receiving such information.

The scope of "duty" is context-dependent and reflects contemporary social values. As noted in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at [32], the duty/interest test "accommodates changing social conditions and accords with the requirements of free speech, the freedom of the press and the freedom of communication."

However, courts remain vigilant that the concept of "duty" does not become so expansive as to undermine the underlying purpose of defamation law. A mere belief that others "should know" defamatory information is insufficient without a recognized duty to communicate it.

3.2 Common Interest Communications

Communications between persons who share a common interest in the subject matter are protected, provided the communication is relevant to that shared interest.

The High Court in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 confirmed that privilege attaches to communications "made on an occasion where the interest is common to both" the publisher and recipient (at [36]).

The "common interest" must be sufficiently substantial and identifiable. As elaborated in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the interest cannot be trivial or merely coincidental; it must be particular to the relationship between the parties and relevant to their shared activities or concerns.

Example 3:
In Jones v Sutton (2004) 61 NSWLR 614, a strata committee chairperson sent a letter to unit owners regarding another owner's alleged breaches of by-laws. The Court of Appeal found this was a communication on a privileged occasion because all unit owners shared a common interest in the enforcement of by-laws and proper governance of the strata scheme. However, the Court emphasized that this privilege would not extend to circulation beyond unit owners or to extraneous defamatory content not relevant to the shared interest.

The boundaries of the common interest delineate the scope of the privileged occasion. Publication beyond those who share the interest, or inclusion of matter not relevant to that interest, exceeds the privilege.

3.3 Publications to a Limited Audience with a Special Interest

The privilege can extend to communications to a defined group, even if relatively large, provided all recipients share a relevant interest in the subject matter.

In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court considered a safety bulletin concerning a workplace safety inspector that was distributed to occupational health and safety subscribers. The Court held this was an occasion of qualified privilege because:

1. The publication was confined to a limited class of recipients (subscribers with responsibility for workplace safety)

2. All recipients shared a genuine interest in the subject matter

3. The information was relevant to that shared interest

This category is distinct from general publication to the public at large. As Gleeson CJ explained in Bashford at [22]:

"The difference between limited publication, on a privileged occasion, to a class of persons with a special interest in receiving the information... and general publication to the world at large... is a difference of fundamental importance."

The critical distinction lies in the defined nature of the audience and their specific relationship to the subject matter. The more diffuse and indeterminate the audience, the less likely courts are to find a privileged occasion.

3.4 Replies to Attacks (Self-defence)

The law recognizes that a person whose reputation or conduct is publicly attacked has a right to respond in self-defence. This "right of reply" constitutes a privileged occasion.

In Harbour Radio Pty Ltd v Trad (2012) 245 CLR 257, the High Court confirmed this category of privilege, holding at [32] that:

"[W]here the plaintiff has made a public attack on the defendant, the defendant has a privileged occasion to respond by way of self-defence to rebut or refute the attack and may include in the response defamatory matter concerning the plaintiff."

Several important limitations circumscribe this privilege:

1. The response must be genuinely made to defend one's reputation

2. It must be proportionate to the initial attack

3. It must be relevant to answering the allegations made

4. It must be published to an appropriate audience (typically the same audience that received the original attack)

As the High Court cautioned in Harbour Radio v Trad at [36], the privilege "does not provide a privilege for retaliatory defamation published by way of abuse." A disproportionate or gratuitous counterattack may exceed the privileged occasion and suggest malice.

Example 4:
A public official is accused at a town council meeting of misappropriating funds. At the subsequent meeting, the official responds by addressing the allegations with evidence of proper financial management. This response would likely be privileged, even if it suggested the accuser had deliberately misrepresented facts. However, if the official were to digress into unrelated allegations about the accuser's personal life or character, this would likely exceed the scope of the privileged occasion.

3.5 Government and Political Communications (The Lange Extension)

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognized a constitutionally derived extension of qualified privilege for communications on governmental and political matters to the general public.

This extension, often termed the "Lange defence," arises from the implied freedom of political communication in the Australian Constitution. It represents a significant departure from traditional common law qualified privilege by potentially protecting communications to the public at large, rather than requiring a narrower reciprocity of duty/interest.

The Lange defence has several distinctive elements:

1. The communication must concern government or political matters affecting the Australian polity

2. The recipients must include electors with an interest in such information

3. The publisher's conduct must be reasonable in the circumstances

4. The publication must not be actuated by malice

The reasonableness requirement is particularly significant, as it imposes a higher standard than traditional common law qualified privilege. As clarified in subsequent cases like Roberts v Bass (2002) 212 CLR 1, this reasonableness inquiry examines whether the publisher believed the imputations were true, had reasonable grounds for that belief, and took proper steps to verify the information.

While Lange represents an important constitutional overlay on defamation law, its practical application has been largely superseded by statutory defences introduced in the uniform Defamation Acts. Nevertheless, it remains significant as a constitutional backstop and for understanding the broader evolution of qualified privilege in Australian law.

4. Defeating the Defence: Malice

4.1 The Concept of Malice

Malice in qualified privilege has a technical legal meaning beyond ordinary notions of ill-will or spite. As articulated by the High Court in Roberts v Bass (2002) 212 CLR 1 at [75]:

"In this context, malice means that the defendant used the occasion of privilege to publish the defamatory matter for some purpose or motive foreign to the duty or interest that protected the making of the statement."

This formulation distinguishes between "express malice" (the improper purpose that defeats privilege) and "presumed malice" (the inference of wrongful intention that arises from publishing defamatory matter but is negated by the privileged occasion).

The test focuses on the defendant's dominant purpose in making the communication. If an improper purpose was a substantial or actuating cause of the publication—even if not the sole purpose—the privilege may be lost.

4.2 Forms of Malice

Malice may manifest in various forms, including:

1. Knowledge of falsity or reckless disregard for truth: Where the defendant knows the defamatory imputation is false or is recklessly indifferent to its truth, this may indicate the communication was not made for the proper purpose of the privileged occasion. As the High Court noted in Roberts v Bass at [104], "knowledge of falsity is ordinarily compelling evidence that the defendant acted for a purpose foreign to the privileged occasion."

2. Ill-will, spite, or animosity: Personal hostility toward the plaintiff may indicate an improper purpose. However, as clarified in Roberts v Bass at [76], "mere ill-will" is insufficient; the improper motive must be a substantial actuating cause of the publication.

3. Extraneous defamatory material: Including gratuitous defamatory content not relevant to the privileged purpose may suggest the defendant was using the occasion as a pretext to defame the plaintiff.

4. Excessive publication: Publishing beyond the audience contemplated by the privileged occasion may indicate the defendant's purpose extended beyond the proper scope of the privilege.

Example 5:
A senior employee writes to company management about suspected financial irregularities by another employee. The communication would ordinarily be privileged. However, if the evidence shows the senior employee knew the allegations were false and made them to eliminate a workplace rival, this would constitute malice and defeat the privilege. Similarly, if the email included unnecessary derogatory comments about the subject's personal life unrelated to the financial concerns, this might indicate an improper purpose beyond the privileged occasion.

4.3 Proving Malice

The plaintiff bears the evidentiary and legal onus of proving malice. This is often challenging because it requires insight into the defendant's subjective state of mind.

As explained in Roberts v Bass at [75]-[76], the plaintiff must establish that:

1. The defendant used the occasion for a purpose other than that for which it was privileged, and

2. This improper purpose was a substantial or actuating cause of the publication.

Given the difficulty of direct evidence, malice is typically inferred from surrounding circumstances. Factors that may support an inference of malice include:

• The defendant's knowledge of falsity or reckless disregard for truth

• A pre-existing history of antagonism between the parties

• The inflammatory or excessive language used in the publication

• The gratuitous inclusion of defamatory material unrelated to the privileged purpose

• The absence of reasonable grounds for belief in the truth of the defamatory imputations

• Failure to make appropriate inquiries before publishing serious allegations

Importantly, mere negligence, carelessness, or impulsiveness in making the communication is generally insufficient to establish malice. As the High Court emphasized in Roberts v Bass at [104], "honest or reasonable mistake is the antithesis of malice."

The standard of proof is the civil standard of balance of probabilities. However, given the serious nature of an allegation of malice, courts often require clear and persuasive evidence before drawing such an inference.

4.4 Effect of Proving Malice

If malice is established, the qualified privilege defence fails entirely, regardless of how clearly the occasion would otherwise have been privileged. As stated in Roberts v Bass at [76]:

"If the defendant uses the occasion for some purpose other than that for which the occasion is privileged, he or she loses the privilege."

A finding of malice may also influence other aspects of the proceedings, including:

1. Supporting an award of aggravated damages, as it demonstrates the defendant's improper conduct and may exacerbate the harm to the plaintiff's reputation

2. Potentially influencing the assessment of general damages, as it speaks to the seriousness of the defamation

3. Sometimes bearing on costs determinations, particularly if the defendant persisted with a privilege defence despite evidence of malice

5. Practical Application at Trial

The application of common law qualified privilege at trial involves distinct roles for the judge and jury (where applicable), with careful delineation of questions of law and fact.

5.1 Judicial Determination of Privileged Occasion

Whether an occasion is capable of being privileged is a question of law for the judge. As explained in Adam v Ward [1917] AC 309 (and consistently applied in Australian law), the judge must determine whether the circumstances of publication give rise to a privileged occasion.

This determination requires the judge to:

1. Identify the alleged privileged occasion based on the evidence

2. Assess whether the circumstances satisfy the duty/interest test

3. Determine the proper scope of the privileged occasion (including its audience limits)

4. Rule on whether publication exceeded that scope

If the judge concludes the occasion is not capable of being privileged as a matter of law, the defence is withdrawn from consideration. If the judge finds the occasion is capable of being privileged, the defence proceeds to consideration of malice.

Example 6:
A company director sends an email to shareholders alleging financial impropriety by the CEO. The judge would determine whether this communication falls within a recognized category of privilege (likely as a common interest communication). If instead the director had posted these allegations on social media accessible to the general public, the judge would likely rule no privileged occasion exists and withdraw the defence.

5.2 Factual Determinations

Where facts underpinning the privileged occasion are disputed, these must be resolved by the trier of fact (jury or judge in non-jury trials).

For example, if a defendant claims privilege based on having received a request for information about the plaintiff, but the plaintiff denies any request was made, this factual dispute must be resolved before determining whether the occasion was privileged.

The judge may provide conditional instructions to guide this determination: "If you find request X was made, then the occasion is privileged; if you find no such request was made, the defence fails."

5.3 Malice as a Question of Fact

Once a privileged occasion is established, the question of whether the defendant was actuated by malice is a question of fact for the jury (or judge in non-jury trials).

However, the judge plays a crucial gatekeeping role in determining whether there is sufficient evidence to leave the issue of malice to the jury. As explained in Horrocks v Lowe [1975] AC 135 at 151 (and adopted in Australian law):

"[T]he judge at the trial should not allow the issue of express malice to go to the jury unless there is evidence from which a reasonable jury, properly directed, could infer that the defendant did not use the occasion for the purpose for which the law conferred the privilege."

If the judge concludes there is no evidence capable of supporting an inference of improper motive, the issue of malice should be withdrawn from the jury, and the defence succeeds. If there is such evidence, the jury must determine whether the plaintiff has proven malice on the balance of probabilities.

5.4 Jury Instructions

When instructing a jury on common law qualified privilege, the judge should:

1. Clearly explain the concept of privileged occasion and identify which publications are alleged to be privileged and why

2. Specify the scope of the privileged occasion (including audience limitations)

3. Define malice as the defendant using the privileged occasion for an improper purpose, foreign to the duty or interest that justified the communication

4. Explain that if the jury finds the defendant was actuated by malice, the defence fails; if not, the defence succeeds

5. Summarize the evidence relevant to malice without expressing an opinion on its weight

An appropriate instruction on malice might be:

"Even if you find the occasion was privileged, the plaintiff can defeat the defence by proving the defendant was actuated by malice. In this context, malice means the defendant used the privileged occasion to publish the defamatory matter for some purpose foreign to the duty or interest that protected the communication. This improper purpose must have been a substantial or actuating cause of the publication, not merely incidental. Consider all the evidence, including [summarize relevant evidence], to determine whether the plaintiff has proven on the balance of probabilities that the defendant was substantially motivated by an improper purpose."

6. Relationship with Other Defences

Common law qualified privilege exists alongside other defences, particularly statutory qualified privilege under the Defamation Act 2005 and the statutory public interest defence introduced in 2021 amendments.

While common law qualified privilege has been partially superseded by these statutory defences, it remains available and relevant in certain contexts. It may be particularly valuable where:

1. The publication clearly falls within a traditional duty/interest category but might not satisfy the reasonableness requirement of statutory defences

2. The publication occurred before the commencement of the statutory defences

3. The circumstances align closely with established categories of privilege but might not meet the more structured criteria of statutory provisions

Defendants often plead both common law and statutory qualified privilege in the alternative, allowing flexibility depending on how the evidence unfolds at trial.

7. Conclusion

Common law qualified privilege remains a significant defence in Australian defamation law, despite the development of statutory alternatives. Its underlying principle—protecting communications made in good faith on occasions where public policy demands freedom of expression—continues to serve an important function in balancing competing interests.

The defence succeeds when two essential conditions are met: the communication must occur on a privileged occasion (established through the duty/interest test) and must not be actuated by malice. While the categories of privileged occasions have evolved over time, the fundamental requirement of reciprocity between publisher and recipient remains constant.

Proper application of common law qualified privilege requires precision in identifying the scope of the privileged occasion, clarity regarding the allocation of functions between judge and jury, and careful analysis of evidence relating to malice. When correctly applied, the defence provides appropriate protection for legitimate communications while ensuring those who abuse privileged occasions for improper purposes remain accountable.

When Will Courts Grant Permanent Injunctions in Defamation Cases?

The recent Federal Court of Australia decision in Greenwich v Latham (No 2) [2025] FCA 131 provides valuable insights into when courts will (and won't) grant permanent injunctions to prevent republication of defamatory content. The case involved Alexander Greenwich, a politician, who had previously succeeded in a defamation action against Mark William Latham regarding what the court called the "Primary Tweet."

In the earlier judgment (Greenwich v Latham [2024] FCA 1050), the court found that Latham had defamed Greenwich through a tweet that carried the imputation that Greenwich "engages in disgusting sexual activities." Latham removed the tweet after public outcry but subsequently made various comments on social media and in a radio interview expressing his views on the matter.

After being awarded damages, Greenwich sought permanent injunctive relief to prevent Latham from republishing the defamatory content or similar imputations. In a considered judgment, Justice O'Callaghan dismissed this application, providing useful guidance on the principles governing permanent injunctions in defamation cases.

The Exceptional Nature of Permanent Injunctions in Defamation

Contrary to common belief, permanent injunctions restraining republication of defamatory content are not granted as a matter of course in Australia. As Justice O'Callaghan noted, "until recently such orders were rarely sought" (Greenwich v Latham (No 2) [2025] FCA 131 at [4]).

The position appears somewhat different in England, where permanent injunctions are described as "the natural remedy that flows from the Court's decision" (citing Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) at [239] and Blake v Fox [2024] EWHC 956 (KB) at [11]).

When Will Permanent Injunctions Be Granted?

The primary condition for granting a permanent injunction is the existence of a real risk of republication. Justice O'Callaghan cited the longstanding principle from Proctor v Bayley (1889) 42 Ch D 390 at 401: "an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction."

In Australian defamation law, injunctions are typically issued only when "some additional factor is evident – usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the court's judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so" (Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at 130 [15]).

Risk Assessment Is Multi-Faceted

As explained in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [29], courts must consider:

1. The extent of the risk of republication

2. The seriousness of the defamation

3. The hardship the plaintiff would suffer if the defamation was repeated

4. The burden on the plaintiff if required to commence further proceedings

The court must also consider whether granting a permanent injunction would avoid a multiplicity of proceedings.

The Greenwich v Latham Decision

In Greenwich v Latham (No 2), Justice O'Callaghan was not satisfied that there was a real or appreciable risk that Latham would republish the defamatory imputation. Despite Latham's defiant public statements after the initial publication, the court noted that "the applicant has not pointed to any occurrence after May 2023, or after judgment was handed down on 11 September 2024, which might suggest a threat of republication of the defamatory material" (at [19]).

The court rejected the argument that Latham's constitutional right to freedom of communication about political matters was relevant, finding that the content of the Primary Tweet was "personal and not germane to any matter of politics" (at [22]).

Damages as a Remedy in Defamation

An interesting aspect of the judgment is Justice O'Callaghan's discussion of whether damages would be an "adequate remedy" if republication occurred. The court found this question somewhat inapposite in defamation cases, citing the observations of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 that "money and reputation are not commensurables" and damages in defamation serve as "a solatium rather than a monetary recompense for harm measurable in money."

As Hayne J noted in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349 [66], "damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable."

However, the adequacy of damages may be relevant in some circumstances. In Tavakoli v Imisides (No 4) [2019] NSWSC 717, permanent injunctions were granted partly because the defendant had "no money or assets which the plaintiff [could] obtain in any remedy in damages" (at [57]).

Examples Where Permanent Injunctions Were Granted

By contrast to Greenwich v Latham (No 2), permanent injunctions have been granted in cases where there was clear evidence of intention to republish. In Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36 at 82 [184], Justice Rares granted a final injunction because "the publishers have made clear, they intend to continue publishing it and so making those imputations that I have found to be false, seriously defamatory and otherwise indefensible."

Similarly, in Lachaux at [238], the court found that "the claimant had successfully established that, unless an injunction were granted, the defendants would continue to publish the defamatory articles."

Practical Implications

The Greenwich v Latham (No 2) decision highlights several practical considerations for defamation litigants:

1. Permanent injunctions are not automatically granted following a successful defamation claim

2. Evidence of a genuine risk of republication is essential

3. Courts will carefully balance free speech considerations against protection of reputation

4. Even without a permanent injunction, defamation plaintiffs retain the right to commence new proceedings if republication occurs

5. Section 23 of the Defamation Act 2005 (NSW) (and equivalent provisions in other jurisdictions) requires leave of the court to commence further proceedings against the same defendant for the same or like matter, but courts are unlikely to refuse leave if republication causes new or additional damage

This decision serves as a reminder that permanent injunctions in defamation cases remain exceptional remedies that will only be granted when specific circumstances warrant such intervention.

The "Interests of Justice" Exception in Defamation Costs Awards

Introduction: McIntosh v Peterson

The recent Western Australian Supreme Court decision in McIntosh v Peterson [No 3] [2024] WASC 446 provides valuable insights into how courts apply the "interests of justice" exception when awarding costs in defamation matters. In this case, veterinary clinic owners Andrew and Kay McIntosh, along with their business For Paws and Feathers Pty Ltd, sued animal rights activist Natasha Peterson, Jack Higgs, and V-Gan Booty Pty Ltd over a defamatory Facebook post. While the McIntoshes succeeded against Peterson and Higgs (receiving damages totalling $280,000), the claim against V-Gan Booty was dismissed, as were claims for injurious falsehood and civil conspiracy. When it came to costs, Chief Justice Quinlan had to navigate the complex interplay between statutory provisions, litigation conduct, and competing interests to determine the appropriate costs order.

The Statutory Costs Regime in Defamation Law

Defamation law in Australia provides a specific costs regime that differs from the usual "costs follow the event" principle. Section 40 of the Defamation Act 2005 (WA) creates a presumption in favour of indemnity costs in certain circumstances but subjects this to the overriding "interests of justice" exception.

Under s 40(2)(a), if defamation proceedings are successfully brought and the court is satisfied that the defendant "unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff," the court must order costs to be assessed on an indemnity basis - "unless the interests of justice require otherwise."

This "interests of justice" exception gives courts significant discretion to consider broader factors when determining costs, even where the statutory trigger for indemnity costs has been activated.

When Do the "Interests of Justice" Override the Presumption?

In McIntosh v Peterson [No 3], Chief Justice Quinlan found that the defendants had unreasonably failed to make a reasonable settlement offer. The defendants' offers of just $2,000 were found to be unreasonable in the circumstances, given that the plaintiffs had already suffered adverse effects and incurred costs. This triggered the presumption in favour of indemnity costs under s 40(2)(a).

However, His Honour went on to find that "the interests of justice require otherwise" for several important reasons:

1. The way parties conducted their cases: Section 40(1)(a) expressly allows the court to consider "the way in which the parties to the proceedings conducted their cases." In this case, the plaintiffs' counsel conducted cross-examination of Ms. Peterson in a particularly problematic manner by making unfounded allegations about her tax affairs. The cross-examination suggested she had declared only $70,000 in receipts from OnlyFans when her actual receipt was $385,000, implying tax fraud. In reality, Ms. Peterson had properly declared all income across her personal and company tax returns. This unfair attack on Ms. Peterson's character was reported in the media, causing reputational harm beyond the proceedings themselves.

2. Mixed success: The plaintiffs were wholly unsuccessful against V-Gan Booty Pty Ltd and failed in two entire causes of action (injurious falsehood and civil conspiracy).

3. Focus of the litigation: The plaintiffs' case had significant focus on Ms. Peterson's financial affairs and V-Gan Booty Pty Ltd's OnlyFans business, which the court found "permeated the plaintiffs' case" but was ultimately unnecessary to establish their defamation claims.

Understanding "Conducting a Case" in Context

The concept of how a party "conducts their case" is particularly important in defamation proceedings, where litigation tactics can significantly affect both the course of the proceedings and reputational impacts beyond the courtroom.

In McIntosh, the plaintiffs' conduct of their case extended beyond merely presenting their claims. Their litigation approach included:

1. Pursuing multiple defendants and causes of action, including against a company not incorporated at the time of the original Facebook post

2. Making an "elaborate case" suggesting Ms. Peterson's animal rights activism was "a ploy for making money"

3. Conducting cross-examination in a way that made serious allegations about tax impropriety that were unfounded and misleading

4. Focusing significantly on Ms. Peterson's financial affairs, which Chief Justice Quinlan found unnecessary for vindicating the plaintiffs' reputations

Quinlan CJ stated that "a party that conducts proceedings in that way should expect that it has costs consequences." This demonstrates that how parties choose to litigate defamation claims—particularly their focus, tactics, and treatment of opposing parties—can directly impact costs outcomes despite the statutory presumption.

Practical Implications for Litigants

The McIntosh decision offers several practical lessons for litigants:

1. Early resolution is crucial: The court described the settlement offers as revealing "the anatomy of a lost opportunity at resolution and... the metastatic effect that legal costs have on the prospect that proceedings can sensibly be resolved." Chief Justice Quinlan observed that much of the harm suffered by the plaintiffs could have been avoided if the matter had been resolved early.

2. Make reasonable settlement offers: Defendants should make genuine attempts to resolve matters with reasonable offers. The sum of $2,000 was deemed "simply unreasonable" even at an early stage.

3. Consider proportionality: In McIntosh, the court noted that some claims (particularly the clinic's claim) were relatively minor in monetary terms and even fell within the monetary jurisdiction of the Magistrates Court jurisdiction.

4. Focus on reputation restoration: Defamation proceedings should focus primarily on vindicating reputation rather than attacking the defendant's character beyond what is necessary for the claim.

5. The "interests of justice" exception has meaningful application: Even when the statutory preconditions for indemnity costs are met, courts retain a genuine discretion to make different orders where the interests of justice require.

Distinguishing Indemnity Costs from Special Costs Orders

It's important to note that the judgment in McIntosh also addressed a separate costs issue: whether to make a "special costs order" under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) to remove limits imposed by the relevant costs determinations. This is distinct from the question of indemnity costs under the Defamation Act.

While the court declined to award indemnity costs under s 40(2) of the Defamation Act, it did make a limited special costs order allowing:

• Removal of time limits for preparation of the case

• An increased hourly rate for counsel (to match senior counsel rates)

This highlights that courts have multiple tools for addressing costs and will apply them proportionately based on the specific circumstances of each case.

Conclusion

The "interests of justice" exception in s 40(2) of the Defamation Act provides courts with important flexibility to ensure costs orders reflect the overall conduct of proceedings and achieve fairness between parties. As demonstrated in McIntosh v Peterson [No 3] [2024] WASC 446, even where a party has technically triggered the presumption in favour of indemnity costs, the court will look holistically at all relevant circumstances.

For defamation practitioners, this case serves as an important reminder that how you conduct litigation—from the framing of claims to cross-examination tactics—can significantly impact costs outcomes. The interests of justice require not just consideration of who won, but how they won, and whether their conduct throughout the proceedings merits the significant benefit of indemnity costs.

Individual Sensitivities in Defamation Damages: Taking Plaintiffs As You Find Them

Introduction: The Michelmore Case

In a recent Western Australian defamation case, Michelmore v Brown [No 3] [2025] WASC 9, the Supreme Court of Western Australia awarded damages to a legal practitioner who had been defamed by former clients. The case involved two defamatory emails – one sent by a single defendant and another sent by multiple defendants – containing statements that seriously impugned the lawyer's integrity and professional competence. Justice Tottle found the statements were "grossly defamatory," had "no foundation in fact," and were "wholly indefensible." The court awarded $70,000 for the first email and $90,000 for the second email, with both amounts including aggravated damages.

The Egg-Shell Skull Rule in Defamation

One of the key considerations in assessing damages for defamation is the principle that defendants must "take their plaintiffs as they find them." This concept, similar to the "egg-shell skull" rule in personal injury law, recognizes that individuals may react differently to defamatory publications based on their personal sensitivities and circumstances.

As Justice Tottle noted in Michelmore, citing Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, "damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment." This principle acknowledges that the harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others might be thinking about them than in any actual change in the attitudes of others toward them.

Individual Sensitivity and Damage Assessment

When assessing damages in defamation cases, courts consider several factors related to a plaintiff's individual sensitivity:

1. Personal and professional reputation: In Crampton v Nugawela (1996) 41 NSWLR 176, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291, the court emphasized that damage awards should "reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment."

2. Subjective impact of the defamation: Courts recognize that the same defamatory statement might affect different plaintiffs in vastly different ways, depending on their personal circumstances, position in society, and psychological makeup.

3. The plaintiff's actual distress: While damage to reputation is presumed and need not be proved, evidence of actual distress can influence the quantum of damages. In Michelmore, the court accepted evidence of the significant distress experienced by the plaintiff, including her testimony that she felt "her stomach had dropped out of [her] body" upon reading one of the defamatory emails.

Balancing Subjective and Objective Elements

Despite the importance of individual sensitivities, courts maintain a balancing approach. As noted in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, there are three purposes served by damages in defamation:

1. Consolation for personal distress and hurt

2. Reparation for harm to reputation

3. Vindication of the plaintiff's reputation

The first two purposes address the subjective harm to the plaintiff, while the third looks more objectively at how others might perceive the plaintiff following the defamation. In Michelmore, Justice Tottle noted that "the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation," drawing on principles established in Carson v John Fairfax & Sons Ltd.

Impact of Defendant's Conduct

The court in Michelmore also considered the defendants' conduct in assessing damages. Citing principles from Triggell v Pheeney (1951) 82 CLR 497 and as explored in Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89, damages may be aggravated by the defendant's conduct before, during, and after publication.

Justice Tottle found that the defendants' failure to apologize and their persistence in maintaining unfounded allegations throughout the proceedings significantly aggravated the plaintiff's injury. This is consistent with the principle articulated in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 that a respondent's failure to provide any apology is pertinent to the assessment of damages.

Conclusion

The Michelmore case reaffirms that when assessing damages in defamation cases, courts will consider the individual sensitivities of plaintiffs while balancing this against objective factors. As stated in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, the assessment of damages involves "a mixture of inextricable considerations."

For defendants, this means understanding that the law requires them to take plaintiffs as they find them – with all their unique sensitivities and vulnerabilities. For plaintiffs, it means that the law recognizes that defamation can cause significant subjective harm, even when others might not perceive any change in a plaintiff's standing or reputation.

As defamation law continues to evolve in the digital age, this principle – that damages should reflect both the objective harm to reputation and the subjective harm to feelings – remains a cornerstone of how courts approach the complex task of compensating defamation victims.

Defamatory Imputations: How Courts Determine What Words Really Mean

Recent Case Example: JABBIE v GBANGAYE

In a recent Supreme Court of Western Australia decision, JABBIE v GBANGAYE [2025] WASC 73, the Court examined defamation arising from a podcast that was livestreamed on Facebook. The case involved two women who had come to Australia as refugees from Liberia. The defendant, a self-styled "talk-show host," made serious allegations about the plaintiff during a podcast discussing the murder of Janet Dweh. The plaintiff's estranged husband had been arrested and charged with the murder three weeks prior to the podcast. The Court found that the defendant made statements implying the plaintiff was complicit in the murder, that she was a violent person, that she had harassed the victim, and that she practiced witchcraft. These defamatory statements were widely viewed within the Liberian community in Australia and internationally. The plaintiff was awarded $325,000 in general damages and $70,400 in special damages.

Understanding Defamatory Imputations

When determining whether something is defamatory, courts consider two key questions: what meaning do the words convey (the imputation), and is that meaning defamatory? In legal terms, an "imputation" refers to the meaning that ordinary reasonable people would take from the publication.

As noted in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, these questions involve "the meaning of the words used (the imputation) and the defamatory character of the imputation." Both are assessed through the lens of the ordinary, reasonable reader or viewer.

The Ordinary Reasonable Person Standard

Courts apply a single standard—that of the "ordinary reasonable person"—which yields a single meaning from potentially competing interpretations. This approach was affirmed in Trkulja v Google [2018] HCA 25; (2017) 263 CLR 144 at [32], where the High Court described the exercise as "one in generosity and not parsimony."

The ordinary reasonable person:

• Is not a lawyer examining the publication with legal scrutiny

• Views the publication casually

• May be prone to "loose thinking"

• Reads between the lines based on general knowledge and experience

• Draws implications much more freely than a lawyer, especially derogatory ones

• Takes into account emphasis given by headlines or captions

This means that courts interpret potentially defamatory content from the perspective of how average people would understand it, not through technical legal analysis.

Different Types of Imputations: Natural Meaning and True Innuendo

Defamation law recognizes two ways imputations can arise:

Natural and Ordinary Meaning

This refers to the meaning that would be understood by an ordinary reasonable person without any special knowledge. In JABBIE v GBANGAYE, statements like "you Charlene will never go free ... your hands are behind the death of Agnes" conveyed a clear imputation that the plaintiff was complicit in murder through their natural and ordinary meaning.

True Innuendo and Extrinsic Facts

True innuendo arises when words seem innocuous on their face but become defamatory when combined with extrinsic facts known to the audience. For example, in Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid explained that a statement might appear innocent to those without special knowledge but defamatory to those who possess certain background information.

Extrinsic facts are facts not contained in the publication itself but known to some or all of the audience. These facts can transform seemingly innocent statements into defamatory ones. For a true innuendo case to succeed, a plaintiff must:

1. Plead the extrinsic facts

2. Prove these facts were known to at least some recipients of the publication

3. Demonstrate how these facts, combined with the published words, conveyed the defamatory imputation

While not explicitly analysed in the JABBIE v GBANGAYE case, true innuendo represents an important concept in defamation law that deserves exploration. This differs from what happened in JABBIE, where the court found the imputations about witchcraft were conveyed through the ordinary meaning of terms like "juju" and "medicine" within the context of the publication. Justice Tottle simply held that "the ordinary reasonable viewer of the podcast would understand the references to juju and witchcraft to refer to the plaintiff" without requiring any special knowledge outside the publication.

A Step-by-Step Guide to Drafting and Proving True Innuendo Imputations

To illustrate how true innuendo works in practice, consider the following fictional example:

Imagine a local newspaper publishes: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712." On its face, this statement merely describes a doctor leaving a hotel, which is not inherently defamatory.

Step 1: Identify the Extrinsic Facts

The plaintiff (Dr. Thompson) must first identify the extrinsic facts that transform the innocent statement into a defamatory one:

• Dr. Thompson is a respected family physician who serves as an examiner for medical certification tests

• Medical certification examinations were scheduled at the university the following day

• The Grand Hotel is where out-of-town students stay when taking these exams

• Room 712 was occupied by a student who was scheduled to take the exam the next day

• The medical board has strict rules prohibiting examiners from having private meetings with students before examinations

Step 2: Draft the True Innuendo Imputation

The plaintiff must clearly articulate how these extrinsic facts combine with the published words to convey a defamatory meaning: "The words meant and were understood to mean that the plaintiff was compromising the integrity of medical examinations by privately meeting with a student before their test, thereby acting unethically, violating professional standards, and abusing his position of trust as an examiner."

Step 3: Plead the Publication, Words, and Extrinsic Facts

In court documents, the plaintiff must carefully articulate all elements of the case:

• Quote the exact words published: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712."

• Clearly identify the publication details (date, newspaper name, circulation numbers, page number)

• Explicitly plead each extrinsic fact, including:

• Dr. Thompson's role as a medical examiner for upcoming certification tests

• The scheduled examinations at the university the following day

• The Grand Hotel's status as lodging for out-of-town exam candidates

• Evidence that a student scheduled for examination was staying in Room 712

• The medical board's ethical guidelines prohibiting private meetings between examiners and candidates prior to examinations

• Connect these facts to show how readers with knowledge of these circumstances would understand the defamatory meaning implied by the otherwise innocent statement

Step 4: Prove Knowledge of Extrinsic Facts

The plaintiff must demonstrate that at least some recipients of the publication possessed knowledge of the extrinsic facts:

• Testimony from fellow medical professionals who read the article and recognized Dr. Thompson as an examiner for the upcoming tests

• Evidence showing awareness within the medical community about which students were staying at the Grand Hotel for examinations

• Witness statements confirming common knowledge about Room 712's occupant

• Documentation of the medical community's familiarity with ethical guidelines regarding examiner-candidate interactions

• Evidence that readers connected the timing of the hotel visit with the next day's scheduled examinations

Step 5: Demonstrate How Meaning Arises

The plaintiff needs to establish the logical connection between the published words and the extrinsic facts:

• Explain why readers with knowledge of the examination schedule would find significance in a midnight visit to a specific room

• Demonstrate how readers familiar with medical ethics would interpret a late-night visit to a candidate's hotel room as improper

• Show why the combination of Dr. Thompson's examiner status, the timing of the visit, and the identity of the room's occupant would lead reasonable readers to infer unethical conduct

• Present evidence that readers actually drew this conclusion upon reading the article

Step 6: Address Potential Defences

Anticipate and counter potential defences the publisher might raise:

• If the defendant claims the extrinsic facts were not sufficiently widespread, provide evidence of their community knowledge

• If the defendant argues readers would not draw defamatory meaning even with knowledge of these facts, present testimony from actual readers who did make this connection

• Counter any claim of an "innocent explanation" by showing why readers would more likely infer impropriety given the specific context

• Address potential truth defences by distinguishing between the literal truth of the statement (Dr. Thompson visited the room) and the false defamatory imputation (that he was compromising examination integrity)

• Prepare for arguments that the statement was merely opinion by demonstrating that the imputation presents as a factual assertion

These steps form a comprehensive approach for establishing and proving a true innuendo case, showing how seemingly innocent words become defamatory when interpreted by readers who possess specific background knowledge about the situation.

When Imputations Are Conveyed

In JABBIE v GBANGAYE, the defendant admitted some imputations were conveyed by her words but denied others. The Court found that serious imputations were indeed conveyed, including that the plaintiff was complicit in murder.

It's important to note that the vehemence with which statements are made can overwhelm qualifiers like "allegedly" or "I believe." As Justice Tottle observed, "in the context of a publication on social media the ordinary reasonable viewer would not have attached any significance to the words 'allegedly' or 'I believe'."

No Defence for Repeating Rumours

A critical principle reinforced in this case is that publishing defamatory statements about a person prefaced by qualifying words does not protect the publisher from liability. As Lord Denning colourfully stated in Associated Newspapers Ltd v Dingle [1964] AC 371 at 410:

"Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself."

This principle was similarly expressed in King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22], where the Court held that a person who repeats a defamatory statement about another can only succeed in justifying the statement by proving the truth of the underlying allegation, not merely the fact that the allegation has been made.

The Defamatory Character of Imputations

For an imputation to be defamatory, it typically:

• Lowers a person's standing in the community

• Lowers the estimation in which people hold that person, or

• Causes people to think less of the plaintiff

As established in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, the test is whether the publication would tend to lead ordinary reasonable members of society to think less of the plaintiff.

In practice, once the meaning of words is determined, whether that meaning is defamatory is often straightforward. In JABBIE v GBANGAYE, the imputations that the plaintiff was complicit in murder, practiced witchcraft, and was violent were plainly defamatory.

Context Matters

The context in which statements are made can significantly influence how imputations are understood. In social media publications, inflammatory and emotive language can amplify the defamatory nature of statements. The Court in JABBIE v GBANGAYE noted that the defendant's comments "were calculated to excite condemnation of the plaintiff" and that she "made no attempt at balance or restraint."

Conclusion

Understanding how courts determine defamatory imputations is crucial for both plaintiffs and defendants in defamation proceedings. The law recognizes that words can carry meanings beyond their literal interpretation and that these meanings are assessed from the perspective of ordinary people, not legal experts.

Whether you're a content creator, social media user, or someone potentially affected by defamatory content, it's important to understand that courts look beyond technical qualifiers like "allegedly" to determine the real message conveyed to audiences. As JABBIE v GBANGAYE demonstrates, the repetition of serious allegations, even when framed as rumours or speculation, can lead to substantial damages when they harm someone's reputation.

The complexities of true innuendo and extrinsic facts further highlight the need for careful consideration of context and audience when assessing potential defamation risks. What might seem harmless to one audience could be deeply defamatory to another who possesses the relevant background knowledge.

Common Law Qualified Privilege in Australian Defamation Law

Introduction

The law of defamation serves to protect personal reputation, but there are situations where the law recognizes that potentially defamatory statements should be protected for the broader public good. One such protection is the defence of qualified privilege, which provides immunity for certain communications made in specific contexts. As a defence, qualified privilege acknowledges that in some circumstances, freedom of communication outweighs the protection of reputation. This blog post explores the principles and application of common law qualified privilege in Australian defamation law, examining key cases that have shaped this important area.

The Conceptual Basis of Common Law Qualified Privilege

The foundation of common law qualified privilege was articulated in the landmark case of Adam v Ward [1917] AC 309. The House of Lords outlined that a privileged occasion arises where:

"the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

This reciprocity requirement remains the cornerstone of qualified privilege. The defence acknowledges that there are situations where society benefits from the free exchange of information, even if that information might be defamatory. As noted in Toogood v Spyring (1834), the defence protects communications that are made "for the common convenience and welfare of society."

In essence, qualified privilege creates a rebuttable presumption against malice. Where an occasion of qualified privilege exists, the plaintiff must prove "malice in fact" to defeat the defence. Whether an occasion is privileged is a question of law for the judge to decide, assuming the facts are not in dispute.

Categories of Qualified Privilege

Over time, the courts have recognized several categories where qualified privilege may apply. These are not exhaustive but represent common situations where the defence has been successfully invoked.

Statements Made Under a Duty to a Person with an Interest

This category applies when the speaker has a duty to make the statement to someone who has either a duty to receive it or an interest in receiving it. In Beach v Freeson [1972] 1 QB 14, a member of Parliament wrote to the Law Society and the Lord Chancellor complaining about the conduct of two solicitors. The court held that the MP had a social or moral duty to communicate this information, particularly as he had received multiple complaints about the firm.

Interestingly, while the Law Society's interest in receiving such information was clear (as it had disciplinary powers), the court also found that the Lord Chancellor had a sufficient interest despite lacking direct disciplinary authority. This was because solicitors were officers of the court, and the Lord Chancellor was ultimately responsible for the machinery of justice.

Commercial contexts can also give rise to qualified privilege. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court held that the defence was available to a publisher of an occupational health and safety bulletin containing defamatory allegations. The court emphasized that what distinguished this publication from other paid publications was "the narrow focus of both its subject matter and its readership" which created the necessary reciprocity of duty or interest.

Statements in Public Functions or Election Campaigns

Another category includes statements made in carrying out public functions or participating in election campaigns. Debate within municipal councils on local affairs typically attracts qualified privilege, as does certain election campaign communications.

In Braddock v Bevins [1948] 1 KB 580, the Court of Appeal took a robust approach to qualified privilege regarding election addresses. The court found that statements in a candidate's election address concerning an opposing candidate were privileged, provided they were relevant to matters electors would consider in casting their votes. The court reasoned that:

"The task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel."

This approach was somewhat tempered in Australian jurisprudence by Lang v Willis (1934) 52 CLR 637, where Dixon J and Evatt J took the view that participation in an election campaign did not create a general occasion of qualified privilege and that defamatory statements made during a public address in such a campaign would normally not be entitled to that defence.

However, in Roberts v Bass (2002) 194 ALR 161, the High Court revisited this issue. Several judges concluded that qualified privilege should attach to:

"statements by electors, candidates and their helpers published to the electors of a state electorate on matters relevant to the record and suitability of candidates for the election."

Protection of Family and Personal Relationships

The courts have also recognized that family and personal relationships might give rise to qualified privilege, though there is limited recent authority on this. In Watt v Longsdon [1930] 1 KB 130, Scrutton LJ acknowledged the difficulty in this area, noting:

"It is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case."

This area demonstrates the significant judicial discretion involved in determining qualified privilege, with courts needing to evaluate whether a moral or social duty exists based on the specific relationship and circumstances.

Statements for the Protection of One's Own Interests

A fourth category protects statements made by a person in furtherance of their own interest to someone who has a duty to receive the information or an interest in receiving it. This requires the same reciprocity element as other categories.

An example would be a shareholder in a company bringing alleged wrongdoing by directors to the attention of regulatory bodies or the Stock Exchange. The shareholder has an interest in addressing the misconduct, and the regulatory bodies have an interest or duty in receiving such information.

In Aktas v Westpac Banking Corporation Ltd (2010) 268 ALR 409, the High Court considered whether a bank's endorsement "Refer to Drawer" on dishonored cheques was privileged. A majority of the court found no reciprocity of interest between the bank and payees where the drawer had sufficient funds to meet the cheques, illustrating the nuanced analysis this category requires.

Responding to an Attack

A well-established category of qualified privilege protects statements made in response to an attack by the plaintiff. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, the High Court recognized that defamatory statements made in response to an original attack may be entitled to qualified privilege.

The extent of permitted response was addressed in Penton v Calwell (1945) 70 CLR 219, where Dixon J noted that:

"the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant."

However, the defence is not unlimited. The response must be proportionate, and as noted in Kennett v Farmer [1988] VR 991, a riposte to a retort (a response to a response) generally wouldn't be protected. The court reasoned that allowing an initial defamer a privileged right of reply to the victim's defence would "severely inhibit his own rights of self defence" and allow a defamer to benefit from their own tortious act.

Complaints About Public Officials

A person who claims to have been adversely affected by a public official's conduct will normally receive the protection of qualified privilege when bringing a complaint to the appropriate official body, assuming no express malice. Courts have shown considerable latitude in such cases.

In Mowlds v Fergusson (1940) 64 CLR 206, a senior police officer made a report containing defamatory material at his superiors' request. He showed the report to the former Commissioner of Police who had resigned. The High Court considered this publication was made on an occasion of qualified privilege, as the former commissioner might be called upon to confirm or refute the defendant's report and had a real moral concern in receiving information about his past administration.

Irrelevant Statements and Loss of Privilege

The protection of qualified privilege only extends to statements relevant to the occasion in question. As articulated in Adam v Ward [1917] AC 309:

"Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected."

The High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 framed the question as "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence."

When a communication contains both relevant and irrelevant defamatory content, qualified privilege only attaches to the relevant part. Moreover, the inclusion of irrelevant defamatory content may provide evidence of malice and potentially destroy the privilege of the relevant portions as well.

It's important to note that the violence of language used does not affect whether there is an occasion of qualified privilege or whether the communication is relevant to that occasion, though it may be evidence of malice.

Media and Qualified Privilege

The courts have consistently rejected any general duty on mass media publishers to communicate matters of public interest to their audience. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Latham CJ stated:

"There is, however, no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because a statement is made in the course of dealing with a matter of public interest."

Courts distinguish between matters in which the public might be "interested" in the sense of curiosity, and matters in which specific readers might have an "interest" due to their connection with the subject matter. As Higgins J noted in Howe v Lees (1910) 11 CLR 361, interest is used:

"in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact — not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."

The High Court in Lange v Australian Broadcasting Corp (1997) 189 CLR 520 observed that "only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public." This decision extended qualified privilege to publications on government and political matters, but subject to the requirement that the publisher's conduct be reasonable—a more stringent test than the traditional qualified privilege defence.

Ancillary Privilege

An important extension of qualified privilege is the concept of "ancillary privilege," which protects technical publications to persons who don't have a legitimate interest in receiving the information but are involved in the process of communication. For example, a stenographer who types a letter of complaint that contains defamatory material would be protected by the same privilege that attaches to the sending of the letter to the appropriate body.

As Lord Diplock noted in Bryanston Finance Ltd v de Vries [1975] 1 QB 703, this is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents of the letter to its addressee."

Conclusion

Common law qualified privilege remains a vital defence in Australian defamation law, balancing the need to protect reputation with the importance of free communication in specific contexts. The defence's foundation rests on the reciprocal duties or interests between the publisher and recipient, with various categories developed through case law.

While qualified privilege offers significant protection in certain circumstances, it is not unlimited. The information must be relevant to the occasion, and the defence can be defeated by proof of malice. For media organizations, the traditional defence has limited application, though constitutional considerations have extended the protection for publications on government and political matters.

Understanding the principles and limitations of qualified privilege is essential for both those making potentially defamatory statements and those who believe their reputation has been harmed. As with many areas of defamation law, each case turns on its specific facts and requires careful analysis of the relationship between the parties and the context of the communication.

Qualified Privilege: Understanding the Limits and Role of Malice

Facts

The Karageozis v Sherman [2023] QCA 258 case involved an allegation of defamation based on a statement made by Ms Lamb to a police officer about the behavior of Mr Sherman after the end of their sexual relationship. The trial judge found the statement was defamatory but not protected by qualified privilege due to malice by Ms Lamb. The appeal court set aside the finding of defamation.

The statement Ms Lamb made to the police officer, as outlined in paragraph 6 of the judgment, was:

"Sheldon Sherman and I worked together for the same company. Sheldon worked in the Brisbane office and I worked in the Sydney office. We met at a work event in August 2019 and started an on-again-off-again relationship that lasted 7 months. I ended the relationship in February 2020 after Sheldon stopped listening to me and the line between our work life and our relationship became blurred. After I ended the relationship, Sheldon continued to contact me through various means which, on the whole, I ignored.

On Friday 13 February 2020 I was forced into resigning my job by the CEO of the company after he found that I held shares in and was a stakeholder in a rival company. I believe that Sheldon provided this information to the CEO because they are good mates.

On Friday 13 March, Sheldon sent me a text message saying, Can I call you? I wrote back Not comfortable with this at all. Sheldon then replied saying Can I call you?

Over the following days, Sheldon contacted my family and attempted to arrange a time to drop my belongings back to me. Sheldon told me that he would contact the university I attend and advise them that I had applied for my current course fraudulently unless I responded to his calls and texts.

I do not want to have any further contact with Sheldon and I do not want any my personal belongings which are still in his possession."

The appeal court found that the only imputation conveyed by Ms Lamb's statement to the police was that Mr Sherman was a vengeful person.

Qualified Privilege

The defence of qualified privilege applies when a defamatory statement is published on an occasion where the publisher has a legal, social or moral duty or interest to make it and the recipient has a corresponding duty or interest to receive it (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [9] per Gleeson CJ, Hayne and Heydon JJ). The defence is based on public policy grounds, allowing free communication about matters of shared interest, provided there is no malice (Cush v Dillon (2011) 243 CLR 298 at [22] per French CJ, Crennan and Kiefel JJ).

The occasion must give rise to a "reciprocal duty or interest" between the publisher and recipient for the statement to attract qualified privilege (Karageozis case at [20], citing Bashford). Whether such reciprocity exists depends on the circumstances, including the relationship between the parties, the subject matter, timing and purpose of the communication (Bashford at [64] per McHugh J).

In Karageozis, the court held the trial judge took too narrow a view in finding no qualified privilege attached to Ms Lamb's statement to the police officer. Police have a wider role than just investigating crimes, including keeping the peace and warning people away from conduct which could become criminal (Karageozis at [22]). Ms Lamb had a legitimate interest in reporting concerning behavior to police, even if it did not amount to harassment or other crimes. Police had a corresponding duty to receive the information to assess any risks or need for intervention. The court should not unduly restrict the defence by requiring conduct complained of to be criminal or unlawful (Cush v Dillon at [22]).

Prior cases have found qualified privilege applies to complaints to authorities about matters relevant to their statutory role or operational responsibilities, even regarding unofficial rumors rather than facts (Cush v Dillon). By analogy, people also have a social duty to report genuinely concerning behavior to police to enable them to fulfill their role protecting public safety. Police have an interest in receiving such information before conduct escalates into domestic violence or other crimes. Applying too strict a test would discourage reporting of legitimate concerns.

Malice

Where qualified privilege applies, the defence can still be defeated by proof the defendant was motivated by malice in publishing the statement to the recipient (Karageozis at [26], citing Bashford at [9]).

Malice in this context means the defendant used the occasion to publish the statement for an improper purpose, rather than honestly discharging their duty or pursuing a legitimate interest (Roberts v Bass (2002) 212 CLR 1 at [79] per Gaudron, McHugh and Gummow JJ).

As malice defeats an otherwise valid defence of qualified privilege, malice must relate to the defendant's purpose in publishing the specific statement to which the privilege applies (Roberts v Bass at [8] per Gleeson CJ).

Evidence of malice in other contexts may also be relevant to inferring malice for a specific publication (Karageozis at [29]).

The legal burden of proving malice lies on the plaintiff, requiring cogent evidence the defendant had an improper dominant purpose (Karageozis at [26] and [33]-[34], citing Roberts v Bass at [96]-[97] per Gaudron, McHugh and Gummow JJ and Murray v Raynor [2019] NSWCA 274 at [62]).

Where facts are peculiarly within the defendant's knowledge and the defendant does not give evidence, the court may more readily draw inferences against them (Karageozis at [32], citing Jones v Dunkel (1959) 101 CLR 298). However, honest purpose is still presumed absent proof displacing it (Roberts v Bass at [96]-[97]).

In Karageozis, the trial judge incorrectly focused on Ms Lamb's purpose in contacting the respondent's wife's lawyers rather than her specific purpose in making the statement to police. Her statement to police was the only publication pleaded and found to be defamatory.

The trial judge inferred malice toward the respondent was Ms Lamb's dominant purpose in contacting police based on limited circumstantial evidence ((Karageozis at [31]). This included the timing of her statement shortly after the respondent contacted her de facto partner, her complaint to the lawyers that same day, her inability to produce text messages to police showing harassment and her not complaining earlier to authorities about the respondent's behavior towards his children.

However, the appeal court found multiple available explanations for this evidence, including Ms Lamb wishing to keep her relationship secret and acting irrationally after its dramatic ending. Without hearing directly from Ms Lamb about her actual purpose, the appeals court held the inferences of malice drawn against her were not sufficiently cogent to overcome the presumed honesty of purpose when making the statement to police.

Here are some key take-aways about proving malice to defeat the defence of qualified privilege:

• The burden is on the plaintiff to prove malice to the high standard of cogent evidence (Karageozis at [33]).

• Malice relates to the defendant's purpose in publishing the specific statement to which privilege attaches (Roberts v Bass at [8]).

• Where facts are within the defendant's knowledge, an adverse inference may be drawn from their failure to give evidence (Jones v Dunkel). However, honest purpose is still presumed (Roberts v Bass at [96]).

• Malice requires proof the defendant used the occasion to publish predominately to injure the plaintiff or for another improper purpose (Karageozis at [33]).

• Limited circumstantial evidence may not provide sufficiently cogent proof overriding the presumption of honest purpose (Karageozis at [34]).

• The defendant's purpose for other connected publications may help infer malice but separate purposes could exist for different publications (Karageozis at [29]).

Establishing Publication of Online Material in Defamation Cases

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.