9.1 Defamation is a tort of strict liability. It can be committed unwittingly by reason of the existence of facts and circumstances unknown, and unlikely to be known, to the publisher of the defamatory statement.1 Liability is shared by all those who participate in the publication of the matter whether their role is primary (as author, publisher or printer), or subordinate (as distributor, retailer, lender, relayer or rebroadcaster).
9.2 Some of those held responsible at law for the defamation can be said to be innocent of the intent to publish a statement which is, in fact, defamatory. Only limited relief is available for such an innocent involvement in the publication. At common law, a “defence” of innocent dissemination is available to a person who, neither knowingly nor negligently, had merely a subordinate role in the dissemination of the matter containing the defamatory statement.2 The statutory defence for innocent publication, conditional on the defendant making an offer of amends, has been considered in the previous chapter.3 The constitutional defence is also available to subordinate publishers in the unlikely event that they have participated in political discussion, provided that they are unaware of the falsity of the material and have otherwise published it without recklessness and reasonably.4
9.3 The common law defence protects innocent publishers of the defamation where:
- they did not know that the material distributed contained defamatory matter;
- they had no grounds to suppose that it was likely to contain defamatory matter; and
- their lack of knowledge was not due to their own negligence.
This defence is available only to those who are not the first or main publisher of the matter which contains the defamatory statement, but have taken only a subordinate part in disseminating it. The defence has been successfully maintained in only a few instances, since it is often difficult for the subordinate publisher to prove an absence of negliglence in publishing.5
9.4 In DP 32, the Commission highlighted the difficulties facing innocent disseminators of defamatory material, and offered for consideration the defence of innocent dissemination proposed by the Australian Law Reform Commission.6 This defence would be available to specified disseminators, including libraries, news-vendors, retailers, wholesalers and printers or other reproducers; it would be coupled with the availability to the person defamed of an injunction to restrain the distribution of the defamatory material.
9.5 The Commission’s position on reform of the law relating to the innocent or unintentional publication of defamatory statements reflects our recommendations in Chapters 6 and 8 for alternative remedies for injury to reputation. The effect of those recommendations is that a declaration of falsity is unlikely to be granted where the defendant is an “innocent subordinate publisher” (in the sense in which that expression is used in this chapter) and, therefore, not a proper contradictor.7 Where such a defendant in response to a request from a claimant issues a correction which meets the requirements specified in Chapter 8, the defendant will have a defence to any claim for damages for non-economic loss. Where the defendant volunteers an otherwise adequate and prompt correction, but the plaintiff claims damages, that correction will operate to reduce the damages. Otherwise, the defences under the current law for an innocent publisher will not be rendered irrelevant, and defendants may continue to seek to rely on them as complete bars to liability. That being so, the Commission must consider whether any reform is necessary.
9.6 The statutory defence of innocent dissemination proposed by the Australian Law Reform Commission8 would give to distributors not primarily responsible for the defamation a complete defence, and significantly erode the position of the plaintiff whose reputation has undoubtedly been harmed by the publication. This, the Commission believes, should be permitted only where there are clear indications that an injustice would otherwise result. As far as the Commission can ascertain, it is not common for plaintiffs to join subordinate participants in the distribution process such as distributors, retailers or lenders.9 In many cases, indemnities would protect the minor participants in the event of suit.
9.7 A recent case demonstrates the reluctance of the courts to extend the application of the innocent dissemination defence. In Thompson v Australian Capital Television Pty Ltd,10 the Federal Court held by majority that a television company broadcasting a program on instantaneous relay from another company was not in the class of subordinate participant in the distribution process to whom the defence is available, being the original publisher of the broadcast in the area to which it was beamed. In consideration of the policy which should be adopted by the law for television broadcasters of programs received from another source, the Court affirmed the principle that where the station intended to publish the material, they ought not to be able to rely on their ignorance of the contents.11 This, it was noted, was consistent with the position regarding application of the defence to rebroadcasters taken in the report of the Faulks Committee.12
9.8 For printers, the position is currently less certain. Despite consistent authority that they cannot be considered subordinate participants in the process of publishing works that contain defamatory material,13 the possibility of printers’ being entitled to the defence was noted in the most recent edition of Fleming.14 The Faulks Committee also made a recommendation to this effect.15 The NSW Court of Appeal has recently been asked to consider whether developments in computer technology have converted printers into reproducers rather than compositors and thus assigning them a subordinate role which should entitle them to rely on the defence of innocent dissemination.16 The Court considered that the defence should go to trial, with the printer having the opportunity to present evidence about the actual circumstances of the printing.
9.9 Ultimately, it is a question of policy whether the defence of innocent dissemination should generally be extended to deny a plaintiff access to damages, particularly should the primary publisher be insolvent, impecunious or unavailable. None of the submissions received by the Commission has offered any argument which would, in our view, justify such a general policy. The Commission considers that it is appropriate that the development of the law relating to innocent dissemination be left to the courts to determine when those involved in the publication of defamatory matter are to be classified as subordinate publishers and what the effects of that classification should be. This is especially desirable in the light of emerging technologies which are constantly revolutionising commercial publishing. In our view, any other approach would be likely to stultify the development of the law.17
FOOTNOTES
1. Hulton v Jones [1910] AC 20.
2. Emmens v Pottle (1885) 16 QBD 354.
3. Defamation Act 1974 (NSW) Division 8, ss 36-45. See paras 8.21-8.24.
4. See Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 137.
5. Eg Vizetelly v Mudie’s Select Library Limited [1900] 2 QB 170. See Australian Law Reform Commission, Unfair Publication: Defamation and Privacy (ALRC 11, 1979) paras 183-185.
6. NSW Law Reform Commission, Defamation (DP 32, 1993) at paras 11.16-11.19.
7. See para 6.15.
8. ALRC 11 paras 186-189.
9. However, this recently occurred in the litigation surrounding the publication of Kevin Perkins’ The Gambling Man: see McPhersons Ltd v Hickie (Court of Appeal, NSW, 26 May 1995, CA 40290/94, unreported). It also occurred recently in the United Kingdom, when Prime Minister John Major and Claire Latimer accepted in settlement token damages from the magazine publisher of defamatory statements about them, and then proceeded with actions against distributors and retailers: see G Bindman “The Major-Latimer Gambit” (1994) 138 Solicitors Journal 391.
10. (1994) 127 ALR 317.
11. Per Burchett and Ryan JJ at 323.
12. Great Britain, Committee on Defamation, Report of the Committee on Defamation (Cmnd 5909, 1975) at paras 298-300.
13. See especially the analysis by Studdert J in Hickie v Perkins & Ors (Supreme Court, NSW, Studdert J, CLD 11530/91, 13 May 1994, unreported).
14. J G Fleming, The Law of Torts (8th edition, Law Book Co, Sydney, 1992) at 541-2.
15. Report of the Committee on Defamation (Cmnd 5909, 1975) at paras 304-309.
16. McPhersons Ltd v Hickie (Court of Appeal, NSW, 26 May 1995, CA 40290/94, unreported).
17. Compare the approach in cl 1 of the Lord Chancellor’s draft Defamation Bill 1995: see Lord Chancellor’s Department, Reforming Defamation Law and Procedure: Consultation on Draft Bill (July 1995) at Chapter 2 and Draft Bill.
