Australia: Publication in an internet context – Graham Hryce

23 06 2016

gazetteThe Western Australia Court of Appeal has recently handed down an interesting decision on the meaning of “publication” in the context of defamatory material posted on the internet. The case is Sims v Jooste (No 2).

At trial, the self-represented plaintiff, Douglas Sims, failed in his defamation action on the basis that he had not succeeded in proving an essential component of his claim, namely that the defendant had published the matter complained of.

The matter complained of was material posted on the internet which was clearly defamatory of the plaintiff.

Kenneth Martin JIt was not in dispute that the defendant had posted the defamatory material. Sims appealed the decision of trial judge Kenneth Martin J (pic).

The Court of Appeal, comprising Martin CJ, Buss JA and Mitchell J, dismissed the failed plaintiff’s appeal.

The key issue on appeal was what comprises “publication” in the context of material appearing on the internet.

“Publication” in the context of defamation law simply means the conveying of the matter complained of to at least one person other than the plaintiff.

As the Court of Appeal accepted, in the context of a newspaper libel, this poses no evidentiary difficulty.

All a plaintiff need do is tender a copy of the relevant newspaper and the court infers that at least one reader read the defamatory material.

There is no necessity for the plaintiff to call evidence from a reader to prove conclusively he read the newspaper article.

In respect of internet publications, however, the position is very different.

In Dow Jones v Gutnick [2002] the High Court held that, in respect of an internet post, publication is a “bilateral” act and only occurs when the post is downloaded, not when it is posted.

The court held that it was impermissible to infer that the defamatory material had been read on the basis that it had been posted.

As the Court of Appeal noted, however, there is one contrary decision on this point, namely Gibson DCJ’s decision in Cavasinni v Camenzuli [2009].

In that case, Gibson DCJ held that the decision in Gutnick only applied to subscriber only internet sites and was willing to infer that a post on an unrestricted site had been read without the need for direct evidence.

The Court of Appeal took the view that this decision was wrong and declined to follow it.

The issue of publication was at the heart of the appeal in Sims v Jooste.

On appeal the plaintiff argued that, just as in the case of a newspaper article, “publication ” should be inferred in respect of an internet post, on the basis that an internet post was published to many more potential readers than a newspaper article.

And, as a matter of basic principle, this argument is difficult to dispute and in other areas of the law courts readily infer facts based upon other facts.

In any event, why should there be a qualitatively different rule for newspaper and internet publications?

Such a distinction seems very difficult to justify on any rational basis.

The Court of Appeal, however, rejected Sims’s argument on this point.

The appeal then devolved to issues of evidence, as Sims argued that he had made out a case on the issue of “publication” on the basis of the evidence led at trial.

The plaintiff’s central argument was based on the pleadings.

Sims argued that in his defence the defendant had admitted publication.

In paragraph 4 of the statement of claim the plaintiff alleged that ” the defendant published or caused to be published’” the matter complained of.

In paragraph four of the defence the defendant said:

“The defendant admits paragraph 4 of the statement of claim”

Furthermore, at trial the plaintiff attempted to lead evidence that persons had read the matter complained of and notified him about it.

This evidence was rejected by the trial judge on the basis that it was hearsay.

It is doubtful whether the trial judge’s rulings on these points, which were upheld by the Court of Appeal, are correct.

The appeal decision cites reams of transcript involving discussion by the parties of the definition of “publication” at interlocutory hearings, but surely the pleadings must speak for themselves.

The fact is that “publication” – not “posting” – was admitted in the defence.

Why shouldn’t an admission on the issue of publication in the defence be taken at face value, irrespective of discussions which took place during the course of interlocutory disputes?

More importantly, the “hearsay ” ruling by the trial judge, is somewhat doubtful.

The law accepts that “hearsay” evidence is admissible on other issues in defamation actions, for example identification and damages: Jozwiak v Sadek [1954] 1 WLR 275 and Garbett v Hazell [1943] 2 All ER 359.

Why should similar evidence on the issue of publication not be admissible?

A number of the findings in this case are unsatisfactory and it raises some fundamental issues relating to internet publications which require further judicial consideration.

Graham Hryce is a media lawyer at Beazley Boorman.

This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication


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