Is online defamation different to print defamation?

The recent decision in Dods v McDonald [2016] VSC 200 defined what constitutes publication in the case of online defamation. 

The law of defamation traditionally relates to printed statements, such as a newspaper articles or ‘tell-all’ books. However, defamatory statements are increasingly made online and can be accessed repeatedly by readers. In an action for defamation, the plaintiff must prove that publication of the defamatory material occurred and that it was read by at least one person. With defamatory material published online, there has been some question over when publication can be considered to have occurred.

Summary

This case concerned the publication of a website by a barrister in Queensland, which accused the plaintiff, a police officer, of shooting and killing a teenager in Northcote in 2008. The plaintiff was exonerated of responsibility in a report by the coroner in November 2011, but the defendant allowed the material to remain online until mid 2012.

Under the Limitation of Actions Act 1958 (Vic), an action for defamation must be brought within 12 months of the alleged publication. As the plaintiff issued a writ on 3 April 2013, the plaintiff had to prove the publication occurred on or after 2 April 2012.

As the material had been on the website for some time, the defendants alleged the publication had occurred outside the limitation period and so the plaintiff would be effectively barred from recovery. This is correct in terms of a newspaper, or a book: once the book or newspaper is published, the publication required for an action for defamation is complete.

However, in the case of material published online, Justice Bell held that publication of defamatory material requires action by both the publisher and the reader. This means publication will occur each time a person reads and comprehends the material, as by allowing access, the publisher is allowing the material to be published to the reader again. This is in contrast to printed material, such as a newspaper, where publication will be deemed to occur when the newspaper is published and read by the reader, but not where it was re-read.

Key messages

If you are publishing material online that could be considered defamatory, bear in mind that publication will be deemed to occur each time someone other than the publisher accesses the material. This means that you will remain vulnerable to actions for defamation as long as the material is available online.

If you are seeking recourse for defamatory statements made online, you should be aware that a cause of action accrues each time publication occurs. While this is of course not ideal for preservation of your reputation, a cause of action is likely to become increasingly viable for recovery of damages the longer material remains available online.

For more information, please contact:

Ali Erskine
Principal
T 03 5226 8524
E aerskine@ha.legal

Stephanie Davies
Senior Associate
T 03 5225 5229
E sdavies@ha.legal