Publication: who is legally responsible for defamatory material

Publication is the first element of a defamation claim, and the one that determines who can be sued. The word has a technical meaning that is wider than ordinary usage suggests. A person who never wrote a word of the material, and who did not know what it said, can be its publisher. At the same time, some activities that look like publishing, such as providing a hyperlink, are not. Section references are to the Defamation Act 2005 (NSW) unless otherwise stated.

Communication to a third party

Defamation protects reputation, which is what other people think of a person. It follows that defamatory matter is not published unless it is communicated to someone other than the person defamed. An insulting letter sent only to its subject is not published in the legal sense, however offensive it is. Communication to one other person is enough.

The High Court described the process in Dow Jones & Company Inc v Gutnick. Harm to reputation is done when a defamatory publication is comprehended by the reader, listener or observer. Publication is therefore a bilateral act, “in which the publisher makes it available and a third party has it available for his or her comprehension”.¹ Until the material is read, heard or seen by someone who can understand it, there is no publication. The Act defines “matter” broadly to include anything by means of which something may be communicated to a person, including pictures, gestures and oral utterances.² Publication can therefore take place in a meeting, by email, by a post or comment, through an image or video, or by a private message to a group.

Who is a publisher

The common law rule is wide. In Fairfax Media Publications Pty Ltd v Voller the High Court confirmed that defamation is a tort of strict liability: a defendant may be liable even if no injury to reputation was intended and even if the defendant took reasonable care.³ The plurality adopted the long standing statement from Webb v Bloch that any person who is instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher, and that all that is required is a voluntary act of participation in its communication.³ The intention of the author is not relevant, because the actionable wrong is the publication.³

In practice that captures the author, the editor, the company that owns the publication, the person who forwards an email, the person who shares a post, the printer and the distributor. Each is a publisher at common law. The law then relieves some of them through specific defences: innocent dissemination for subordinate distributors such as newsagents, libraries and some internet service providers who neither knew nor ought reasonably to have known that the matter was defamatory,⁴ and, where enacted, the digital intermediary exemptions and defence discussed below. The distinction matters because a publisher can be named as a defendant and must raise and prove the defence.

Facebook page administrators after Voller

Voller concerned media companies that maintained public Facebook pages on which they posted links to news stories, and third party users posted comments alleged to defame Mr Voller. The companies argued they had not published the comments because they neither wrote nor knew of them. The High Court held, by majority, that the companies were publishers. The plurality said the companies’ acts in facilitating, encouraging and thereby assisting the posting of comments by third party Facebook users rendered them publishers of those comments.⁵ Gageler and Gordon JJ reached the same result on the basis that each company became a publisher of each comment as and when it was accessed in comprehensible form by another user, by reason of its intentional participation in the process by which the comment became available.⁶ Their Honours observed that the companies’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality had an air of unreality; having taken action to secure the commercial benefit of that functionality, they bore the legal consequences.⁷

The principle extends well beyond media companies. Anyone who creates and administers a page, group or forum on which others can post is, at common law, a publisher of what they post, from the moment it is read by someone else. Whether that person is ultimately liable depends on the defences available, including s 31A where it has been enacted.

Hyperlinks and search results after Defteros

Google LLC v Defteros concerned a search result that provided a hyperlink to a newspaper article about a Melbourne solicitor. The High Court held, by majority, that Google was not a publisher of the article to which the result linked. Kiefel CJ and Gleeson J said that a hyperlink is content neutral, that a search result is fundamentally a reference to something somewhere else, and that facilitating a person’s access to the contents of another’s webpage is not participating in the bilateral process of communicating its contents to that person.⁸ Their Honours accepted that the position may be different where a person endorses, adopts or otherwise approves of the material to which the link leads.⁹ Gageler J, who also found for Google, emphasised that the result in question was an organic search result rather than a sponsored link paid for by an advertiser, and Edelman and Steward JJ noted that different considerations may apply to advertisements.¹⁰

Defteros was decided before the Stage 2 exemption for search engine providers took effect, and the exemption now covers much of the same ground where enacted. The decision remains important everywhere for its treatment of hyperlinks. A person who posts a link without adopting or endorsing the linked material has a strong argument that they did not publish its contents. A person who posts a link together with words that repeat or approve the allegation is in a different position. Defteros concerned the content of a linked page. The earlier decision in Trkulja v Google LLC concerned the search results themselves, and held it strongly arguable that Google published its own results, including images and autocomplete predictions.¹¹

Repeating what someone else said

A person who repeats a defamatory allegation made by someone else publishes it. The law does not distinguish between a publisher who originates an allegation and one who passes it on, and attributing the allegation to its source (“I was told that”, “a former employee says”) does not avoid liability. The Queensland Court of Appeal restated the rule in September 2026: in the case of the republication of defamatory hearsay, the republisher is prima facie liable in defamation without any requirement that the hearsay was adopted, although the context in which the hearsay was republished may affect the nature and quality of the republisher’s liability.¹² The New South Wales Court of Appeal had said the same thing in John Fairfax Publications Pty Ltd v Obeid and Corby v Allen & Unwin Pty Ltd.¹³

Context does matter to what the republication means. A report that sets out an allegation together with a credible counterpoint may not convey the allegation as true, as happened in the Queensland case, where the article was held not to convey the pleaded imputations.¹⁴ That is a question of meaning rather than of publication.

The original publisher can also be liable for republication by others where it was the natural and probable result of the original publication, for example a statement made to a journalist with the obvious expectation that it will be reported, although generally only where the republication reproduces the sense and substance of what was originally said.¹⁵

Every reading is a separate publication

At common law, every communication of defamatory matter founds a separate cause of action.¹⁶ Material read by 1,000 people has been published 1,000 times, and material placed on the internet is published in each place where it is downloaded and read.¹⁷ This rule has two important consequences, one for jurisdiction and one for limitation.

First, it determines where the tort is committed and which law applies. Defamation is ordinarily located where the damage to reputation occurs, which is where the material is available in comprehensible form, provided the person defamed has a reputation there.¹⁷ Within Australia, where matter is published in more than one jurisdiction, s 11 applies the law of the jurisdiction with which the harm has its closest connection.¹⁸

Second, it affects limitation. Until 2021, each fresh download of an online article could in principle start a new limitation period. Under the single publication rule in the Limitation Act 1969 (NSW), the one year period for an electronic publication now runs from the day the matter was first uploaded or sent, and, where the first publication was to the public, later publication of substantially the same matter by the same publisher (or an associate) does not restart time unless the manner of publication is materially different.¹⁹ Queensland has equivalent provisions in ss 10AA and 10AB of the Limitation of Actions Act 1974 (Qld).²⁰ This is a limitation rule only. Each reading remains a publication for the purposes of proving the extent of publication and serious harm.

The Stage 2 digital intermediary reforms

The second stage of the national reforms addressed the liability of online intermediaries. The provisions commenced in New South Wales and the Australian Capital Territory on 1 July 2024, Victoria on 11 September 2024, Tasmania on 16 June 2025, the Northern Territory on 11 August 2025 and Queensland on 26 December 2025.²¹ South Australia has enacted only part of the package and Western Australia none of it. In the NSW Act the provisions are Part 2, Division 2A (ss 10B to 10E) and s 31A.

A digital intermediary is a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published.²² This includes platforms, forum operators and page administrators, but excludes the poster.

The exemptions

Section 10C exempts a digital intermediary from liability where the matter was published using a caching, conduit or storage service provided by the intermediary, the intermediary’s role was limited to providing that service, and the intermediary did not initiate the publication, select recipients, encourage the poster, edit the content or promote the matter.²³ Section 10D exempts a search engine provider for search results generated by an automated process, and for the matter to which those results link, but not to the extent the results are promoted or prioritised because of a payment or other benefit from a third party.²⁴ Both exemptions apply regardless of whether the intermediary knew or ought to have known that the matter was defamatory.²³ Under s 10E the judge determines whether an exemption applies, as soon as practicable before trial unless there are good reasons to postpone, and may dismiss the proceedings if it is established.²⁵

The s 31A defence

Section 31A provides a defence for other digital intermediaries. The defendant must prove that it was a digital intermediary, that at the time of publication it had an accessible complaints mechanism for the plaintiff to use, and that, if the plaintiff gave a written complaint identifying the plaintiff, the location of the matter and the fact that the plaintiff considered it defamatory, reasonable access prevention steps (if any were available) were taken, either before the complaint or within seven days after it.²⁶ The defence is defeated only if the plaintiff proves the defendant was actuated by malice in establishing or providing the online service through which the matter was published; malice directed at the particular post is not the test.²⁶ An intermediary does not lose that status merely because it moderated or removed unlawful content or content that breached its terms of service.²⁷

The practical effect is that a forum operator or page administrator in a Stage 2 jurisdiction that maintains an accessible complaints mechanism, and takes reasonable access prevention steps within seven days of a compliant complaint, has a defence to a Voller type claim. The poster has no such protection. Courts can also order a non party digital intermediary to take access prevention steps once judgment or an injunction has been obtained against the poster.²⁸

Proving publication

The plaintiff must prove publication to at least one third party, and the extent of publication is central to the serious harm element and to damages.

For print and broadcast media, courts have long inferred substantial publication from circulation and audience figures. The internet is different. The Western Australian Court of Appeal explained in Sims v Jooste [No 2] that it cannot be inferred that anyone has accessed a web page merely because material was posted online, since many web pages have never been seen by anyone other than the person who posted them. A plaintiff must plead and prove a platform of facts from which an inference of download can properly be drawn.²⁹

In practice that evidence comes from direct evidence of people who read the material, analytics, view counts, likes, shares and comments, the size and composition of a group or page, and the number of followers of an account. For documents produced in numerous copies, s 41 provides that a statement in the document that it was printed, published or distributed by a particular person is evidence of that fact.³⁰ Where the alleged publication was to a small group, the plaintiff will usually need to identify who received it and prove that they read or heard it and understood it.

Getting advice

For a person who believes they have been defamed, the publication element means working out, early, exactly who communicated the matter and to whom. The author may not be the only, or the most appropriate, defendant, and in Stage 2 jurisdictions a platform or administrator should be sent a compliant complaint promptly. For a person who administers a page, group or forum, Voller means that what others post there is published by the administrator, and the s 31A defence depends on having a complaints mechanism in place before publication and responding within seven days. For anyone passing on an allegation, the repetition rule means that attribution is no shield.