‘Publication’ of Defamation in the Digital Era
By Michael Douglas Consultant, Bennett + Co and Senior Lecturer, University of Western Australia and Martin Bennett Founding Principal, Bennett + Co
Most commentary surrounding Australian defamation law suggests that the law is outdated or ill-equipped for the digital era.1 There is superficial truth to that suggestion. Australian defamation law is the product of centuries of common law development and various iterations of unsatisfying legislative intervention.2 It is fragmented and not entirely coherent. It can be tricky.3 Yet that does not mean that we should do away with defamation law. The action protects reputation—one of the most valuable things a person can have. In the digital era, in which online content is increasingly accessible and permanent, reputation is perhaps more valuable than ever. Reputation is important, and so defamation law is important.
06 | BRIEF OCTOBER 2020
In this article we explore one aspect of how defamation law has adapted to the digital era: the development of the ‘publication’ element of the cause of action. In the last few years, a number of cases have touched upon this element, challenging expectations as to the scope of defamation liability. We show that Australian defamation law is adapting to
the digital era, albeit in a way that some media and tech companies may not like.
Publication in defamation law The cause of action is constituted by publication of defamatory matter of and concerning the plaintiff. Liability is strict; intention is not necessary for liability.4 If the matter is defamatory then damage is presumed.5 The concepts of ‘publication’ and ‘matter’ are related. The latter is the medium by which publication is made. The Uniform Defamation Acts provide that ‘matter’ includes: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;