The defence of innocent dissemination is one that may apply to persons who innocently distribute defamatory material without knowing that the publications are, in fact, defamatory. Publishers, or distributors, of allegedly defamatory material who may be able to rely on the defence of innocent dissemination include but are not limited to persons or entities such as newsagents, booksellers, and libraries[1].
It is important to note that a disseminator of defamatory material may be protected by the defence of innocent dissemination only if they did not contribute to the publication of defamatory material, such as by publishing their own commentary when distributing the material[2].
Notably, Internet Service Providers (ISPs) and Internet Content Hosts (ICHs)[3] are not protected by the defence of innocent dissemination but are rather governed by the Broadcasting Services Act 1992 (Cth) (‘the BSA’).
Common Law Defence of Innocent Dissemination
At common law, the following elements are required in order for the defence of innocent dissemination to be relied on:
- The disseminator was not aware that the publication was defamatory;
- The disseminator was not aware that it was likely to be a defamatory publication; and
- The lack of knowledge was not due to the disseminator’s negligence.
Whether a disseminator is negligent or not will depend on the circumstances of each individual case. For instance, where the disseminator has failed to examine the material before distribution, the disseminator may still be held liable for the publication of the material under the element of negligence[4]. However, the disseminator will not automatically be held liable for negligence merely for not examining defamatory material prior to distribution[5]. For instance, in the case of R v Nutt[6], the disseminator was bedridden and lived too far away from the distribution site to examine materials before distributing them. It was held that the disseminator was not aware of and could not have been expected to be aware of the contents of the publication[7].
In addition to the abovementioned requirements, for the defence of innocent dissemination to apply, the disseminator must not be the primary publisher of the defamatory matter, and further, the disseminator must not have published anything defamatory beyond what was written by the primary publisher[8].
In circumstances where there are people who print or are in the business of printing materials, also known as a printer of defamatory materials, the printer will not have the defence of innocent dissemination available to them because they are required to carefully examine the publication prior to printing[9]. This is not the case for broadcasting services that rebroadcast material[10]. Broadcasting services include radio and television services which may broadcast information to their audience. Rebroadcast refers to the replaying of the broadcasted information.
Statutory Defence of Innocent Dissemination
Section 32 of the Defamation Act 2005 (“the Act”) details the defence of Innocent Dissemination, which is intended to protect certain persons who innocently publishes defamatory matter. Section 32(1)(a) of the Act provides that the defence of defamatory matter may apply if the defendant can prove that “…the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor”.[20]A subordinate distributor is defined in section 32(2) as someone who is not the primary publisher, author or originator of the material, or alternatively does not have editorial control of the material.
Section 32(3) of the Act goes on to provide a list of persons to whom the defence may apply, including*:
- A bookseller, newsagent or new-vendor;
- A librarian;
- A wholesaler or retailer of defamatory matter; and
- A broadcaster of a live program.
*The above list is not exhaustive.
Statutory Defence for Internet Service Providers and Internet Content Hosts
ISPs and ICHs are governed by the BSA. The BSA primarily regulates broadcasting, datacasting, online concent, content services and related purposes, such as radio and television. Importantly, internet content does not include information transmitted via ordinary email and in the form of a broadcasting service[11]. ISPs provide access to the internet, while ICHs host internet content[12]. Relevantly, ISPs and ICHs should not be confused with the broadcasting of live programs, as the latter is protected by the defence of innocent dissemination under section 32(3)(e) of the Act. Additionally, section 206 of the BSA applies specifically to defamation matters and confirms that publications that are broadcasted or data casted are considered to be in permanent form[13] because the nature of the publication is no longer in transient form which would affect how recipients interpret the information.
While the defence of innocent dissemination does not apply to ISPs and ICHs, ISPs and ICHs still have the onus of proving that they were not aware that the content that was disseminated was in fact defamatory. Further, where an ISP or ICH has their industry code registered with the Internet Industry Association, they will be protected from any liability under defamation[14]. Conversely, search engine operators, such as Google, can rely on the defence of innocent dissemination until such time as they are notified of the defamatory nature of the material published[15].
The court considers the following when determining whether a broadcast contains defamatory material[16]:
- Tone of voice;
- Visible actions of people on broadcast; and
- Captions and images displayed by television.
In circumstances where broadcasts publish defamatory material on political matters or current affairs, a request to provide a recording of the broadcast is sent to the broadcaster for litigation purposes[17]. The broadcaster is required to possess a recording of the broadcast for six weeks, or alternatively 60 days if a complaint has been made in relation to the broadcast[18]. In these situations, court proceedings must commence within three months after notice is provided[19].
Contact Harris Defamation Lawyers
If you have been accused of distributing defamatory material as a secondary publisher and you were unaware that the material you were distributing was defamatory, you may be protected from liability under the defence of innocent dissemination. However, section 32 of the Defamation Act 2005 places limits on the persons or entities for which the defence of innocent dissemination may apply and the conditions that must be complied with in order for a publisher to be able to rely on this defence.
Even where a person or entity accused of publishing defamatory material is otherwise be protected under section 32, the defence of innocent dissemination may not apply if it is found that the disseminator could have taken reasonable steps to confirm the accuracy or defamatory nature of the material published prior to publication.
If you have been accused of publishing defamatory material that you did not know was defamatory, or you are concerned that you may have exposed yourself to a defamation claim, contact Harris Defamation Lawyers for an obligation-free discussion to explore your legal rights and options.
