Introduction
In order to determine whether a publication is defamatory, the element of publication must be satisfied. Publication requires there to be a publisher to hold liable for defamatory statements, repetition, or republication of matter. This article aims to examine and understand what constitutes publication including the different circumstances in which defamatory publications may arise, appreciating the different rules in which a cause of action in defamation may be brought.
The Publisher
In defamation claims, it is important to determine who the publisher is for liability purposes. Accordingly, liability is not limited to the original publisher of defamatory material. There are many ways others can be jointly liable in publication of defamatory material. As such, the following are situations that may arise that can hold someone other than the original publisher liable for defamatory publications:
- Anyone who engages in further distributing the publication[1];
- Signatories who sign petitions[2];
- Anyone who reads defamatory statements aloud, even if published by another[3]; and
- Booksellers, newsagents, and libraries, etc.
In any event, simply contributing parts of a publication would not hold someone jointly liable. Normally, joint liability in a defamation matter would require a person to have control over or assent to the publication, repetition, or republication of defamatory material[4]. In other words, they would need to have primary responsibility of the publication.
Repetition
Repetition refers to the repeating of defamatory publications to another and anyone who does so is held liable as the original publisher of that material. As such, a person who repeats defamatory publications is considered to have carried out a defamatory act[5]. In such circumstances, a Court will consider the context of the defamatory publication and purpose of repeating the defamatory matter. Correspondingly, the facts of each case will determine whether someone is held liable for repeating defamatory publication[6].
Republication
Republication as opposed to repetition of defamatory matter refers to third parties repeating publications. Most of the time, third parties are held liable for republishing defamatory material as they are considered to have committed another act of defamation. There are a few circumstances where the original publisher can be held liable for a third party republishing defamatory material. They include situations where:
- The original publisher authorised republication;
- The original publisher intended the third party to republish;
- The original publisher told a third party, and the third party was under a moral obligation to republish; and
- The republication was a natural and probable consequence of the publication.
In the old case of Speight v Gosnay[7], the Defendant made defamatory statements in relation to the Plaintiff’s virginity in front of the Plaintiff’s mother who then repeated the statements to the Plaintiff’s fiancé. The fiancé called off the engagement. The Court held that while the Defendant made defamatory statements, he could not have been held liable for the damage caused if there was no intent or authorisation of republication, there was no obligation or duty for the Plaintiff’s mother to republish the matter, or where the republication was a natural and probable consequence of the publication. In this case, the Court ruled in favour of the Defendant.
The Publication
With respect to publications, defamatory material is determined by examining the facts of each case. Essentially, publication is a Defendant communicating defamatory matter to a third party. To clarify, communicating defamatory matter to a Plaintiff does not amount to defamation as communicating to a third party is a required element for a claim. There are several ways in which publication for defamation claims are established. For instance, in Urbanchich v Drummoyne Municipal Council[8], the Defendants posted defamatory posters on their buses about the Plaintiff, a political candidate. They were asked to remove the publications and failed to do so therefore the Court held them liable. In Jeffries v Duncombe[9], the Defendant placed a lamp outside the Plaintiff’s home to indicate that the Plaintiff kept a brothel, which amounted to publication for the purposes of defamation. The Court considered the form of communicating defamatory material in the case of Sadgrove v Hole[10]. In that case, the Court held that postcards are an effective form of defamatory publication. Similarly, in Williamson v Freer[11], the Court found the telegrams were considered defamatory publication as the telegram was required to be passed through clerks before it was received by the Plaintiff. Other modes of publication could include, pointing at a place card[12], a sign[13], a sketch[14], and a waxworks dummy[15].
Proving Publications
Media Publications
Where media is concerned, defamatory publications have a wide reach in audience. Hence, particularising pleadings as to who the third party consists of, where publications have been made through media, would be an onerous task. For example, in the case of Lazarus v Deutsche Lufthansa AG[16], the Court held that with a publication reaching a wide audience, the Plaintiff is simply able to rely on the fact that communication of defamatory matter was published through the media. In other words, the Plaintiff is not required to particularise who the third party is in their pleadings.
Limited Dissemination
Limited dissemination refers to the publication of defamatory material to a limited number of people. For example, in workplaces communications about others can be held defamatory in many situations. In Traztand Pty Ltd v Government Insurance Office of New South Wales[17], the Court held that the communication of defamatory material by the Defendant insurer to the Plaintiff company was sufficient to establish defamation. In another case, Jones v Amalgamated Television Services Pty Ltd[18], the Court held that defamatory communication by one employee to another was sufficient to establish defamation. Contrastingly, in the case State Bank of NSW Pty Ltd v Currabubula Holdings Pty Ltd[19], the Court raised the issue as to whether intra-company communications would constitute defamation. The court considered that companies act through people and communications received on behalf of a company is communication to the company only and not other people. The English Court of Appeal found that where a person’s work performance is discussed by one person to their secretary and another employee would constitute defamation[20].
In other situations, such as where a Defendant is communicating statements directly to the Plaintiff via mail, and is then read by a third party, the Court will have several considerations including the form and features of the communication, the reasonable foreseeability that a third party would read it, the natural probable consequence that a third party would read it. For instance, in the case of Thorley v Kerry[21], the court found that defamation was established where the servant carrying the letter to the Plaintiff opened and read it. Conversely, in the case Huth v Huth[22], the Court held that the letter sent to the Plaintiff by the Defendant was opened by the butler and read outside the scope of his duty, therefore defamation was not established.
Mistake and Accidental Publication
Generally, defamatory publications occurring out of mistake or accident are not considered defamatory. However, there are some instances where defamation would be sufficiently established, such as where a Defendant has disseminated defamatory publications to a limited number of people. In circumstances where the Defendant intends to directly express statements to the Plaintiff but a third party who was not meant to see or hear the statements, sees and/or hears statements, the Defendant will not be held liable. Other circumstances where the Defendant has created defamatory statements, in a letter for instance, but does not send it and a third party reads it, the Defendant would not be held liable[23].
Publication between Spouses
In the historical case of Wennhak v Morgan[24], the Court held that where there is publication of defamatory statements between spouses, they will not be considered to have established defamation. This was termed spousal privilege. For example, in the case of Cattanach v Melchior[25]and Theophanous v Herald & Weekly Times Ltd[26], the Court held that publication in defamation claims is not satisfied where it is between spouses. However, where a Defendant makes defamatory statements about the Plaintiff to the Plaintiff’s spouse, the Defendant would be held liable for defamation[27].
Foreign Language Publications
Where defamatory publications are made in a foreign language, the Plaintiff must prove that at least one person had comprehended the contents of the publication in order for defamation to be satisfied. In circumstances where the language is not understood, there is in action in a defamation claim[28]. In the case of Harkianakis v Skalkos[29], defamatory statements were made in the Greek language to Greek media and the Court found that defamatory matter was published to the Greek community who understood the language being spoken in Greek media.
Multiple Publication Rule
The multiple publication rule is the rule that each publication of defamatory material is considered a separate cause of action[30]. In the case of R v Carlisle[31], the Defendant was being prosecuted for different copies of the same publication and the Court found that the Defendant was liable for both publications in separate proceedings under the multiple publication rule. Originally the multiple publication rule was established as authority in Duke of Brunswick v Harmer[32], where the Plaintiff brought a claim against the Defendant for defamatory publications made well past the limitation period. The Plaintiff’s servant was ordered to purchase the newspaper in which defamatory publications were made. The Court found that because the servant was able to purchase the newspaper, the Defendant had published the matter. This case demonstrated how the multiple publication rule rarely has limitations efficiently enforced.
Single Publication Rule
Conversely, the single publication rule prevents Plaintiffs from bringing multiple claims in multiple jurisdictions. While more recently, the United Kingdom has implemented the single publication rule, currently, this rule is not implemented in Australian statutory law. This rule implements limitations on the multiple publication rule. Additionally, under the single publication rule, only a single claim could be brought against the media for publication in defamation. In terms of limitation periods, generally parties have 12 months from the date of publication to commence legal proceedings. The limitation period under the single publication rule, starts on the date of the first publication and subsequent publications that are substantially similar and “not materially different” to the first publication, do not affect the limitation period.
Conclusion
As detailed above, there are several ways in which publication for defamatory claims are established. Proving the element of publication in defamation law is complex and requires skill.
At Harris Defamation, our lawyers can help you through the defamation process. Regardless of whether you are a Plaintiff or Defendant in a claim, we can help you prove or disprove the element of publication.
