The defence of innocent dissemination is consistent across all Australian states and provides a publisher with relief from liability for defamation if the publisher of the material is able to prove three elements:
- That they published the material merely in the capacity, or as an employee or agent, of a subordinate distributor;
- That they neither knew nor ought reasonably to have known, that the matter was defamatory; and
- That their lack of knowledge was not due to any negligence on the part of the defendant.
This defence is of particular importance in light of the recent High Court decision in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27. In that case, major media organisations were held liable as publishers for comments made by third parties on their Facebook pages, and in response to articles posted by them. As a result of that decision, the defence of innocent dissemination will inevitably serve as an important protection not only for major media organisations but also for individuals and businesses that utilise social media platforms for personal or professional purposes.
What is a subordinate distributor?
The first element of the defence of innocent dissemination is that a person be a subordinate distributor. For the purposes of this defence, a subordinate distributor is a person who:
- Was not the first or primary distributor of the matter;
- Was not the author or originator of the matter; and
- Did not have any capacity to exercise editorial control of the matter, or the publication of it, before it was first published.
The relevance of the above elements is clear in the context of social media and in the wake of the Voller decision. Whilst the defence of innocent dissemination was not discussed or concluded in that decision, it is a circumstance in which the media organisations were neither the first distributor nor the author of the comments made by other Facebook users. They also had no control over the words posted by the third parties prior to the posting. No decision has conclusively determined whether circumstances such as Voller will give rise to a successful defence of innocent dissemination, but the main argument is whether, in allowing comments to be made on public Facebook posts, the major media organisations did have some control over the publication of the matter before it was published, that control being, for example, the ability to disable comments.
To assist in determining whether a person is a “primary distributor”, the Defamation Act in each state lists some specific circumstances in which a person will not be considered a primary distributor. Those circumstances include, for example, a broadcaster of a live program in which the broadcaster has no effective control over the person making the statements. For example, if an interviewee on a live broadcast makes defamatory statements, the broadcaster of the interview would not be a primary distributor and, as such, may be able to plead a defence of innocent dissemination.
Determining whether a publisher is a subordinate distributor is just the first step in the defence of innocent dissemination. As mentioned earlier, it will also be necessary for the publisher to prove that they did not know, nor ought reasonably to have known, that the matter being published was defamatory. That goes to the state of mind of the publisher and the surrounding circumstances. Further, the requirement that the lack of knowledge was not a result of negligence will also go to the state of mind of the publisher and the surrounding circumstances.
Conclusion
Whilst not distinctly raised in defamation claims based upon online content, the defence of innocent dissemination is hugely relevant to online publications. The decision of the High Court in the Voller case has brought to light a number of issues with respect to a defence of innocent dissemination, and will likely lead to an increase in the number of defendants seeking to rely upon it. As such, it is important to understand the elements of the defence, both when bringing a claim for defamation and when defending a claim for defamation.
Have you been the subject of negative public publications and want to learn more about your rights? Contact our defamation team today at [email protected] to discuss your matter further.
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