Publication in defamation: the short answer
Publication in defamation occurs when defamatory matter is communicated to, and comprehended by, at least one person other than the plaintiff. The communication may be oral, written, visual or electronic. A person is liable as a publisher if that person intentionally participates in the process by which the matter reaches the third party, subject to statutory exemptions and defences.
Four questions usually decide the issue:
- Was the matter communicated to anyone other than the plaintiff?
- Could that recipient identify the plaintiff and understand the defamatory meaning?
- What did each proposed defendant do to bring about that communication?
- Does a statutory exemption or defence protect a person who technically participated in distribution?
That sequence matters. A pleading that simply labels several defendants as “publishers” without identifying each defendant’s act of publication invites an application for particulars, strike-out or summary disposal.
What does publication in defamation mean?
Publication is a common-law element of the tort. It is not confined to a newspaper or formal public statement. The High Court described publication as a bilateral act: the publisher makes the matter available and a third party has it available for comprehension. The recipient must hear, read or see enough of the matter to understand it. See Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [26]–[27], [44].
A communication made only to the plaintiff does not injure reputation in the eyes of somebody else. There is no actionable publication in defamation on that fact alone. If the same email is copied to a colleague, or the plaintiff opens it in the ordinary presence of another person whom the sender knew would read it, the position may be different.
The subject matter can be words, a photograph, a video, an emoji, a gesture, a search result or a combination of material. Context supplies meaning. Publication in defamation is established by proof of the communication of the matter complained of, not by isolating a single sentence from the vehicle in which it appeared.
Communication and comprehension
Delivery is not always proof of comprehension. An unopened letter, an unheard recording or a message written in a language no recipient understands may not complete publication in defamation. The plaintiff ordinarily proves publication directly, through a recipient, or by circumstantial evidence from which receipt and reading can reasonably be inferred.
A mass-media or prominent online publication may support an inference that people received it, but the internet does not create an irrebuttable presumption of readership. Evidence such as analytics, circulation, views, comments, forwarding, screenshots and witness testimony can become important. This is also where publication connects with the statutory requirement that the matter has caused, or is likely to cause, serious harm under s 10A(1) of the Defamation Act 2005 (Qld) and with Stonegate Legal’s guide to the serious harm threshold.
Common forms of publication in defamation
| Form | When publication ordinarily occurs | Frequent liability issue |
| Conversation or meeting | A third party hears and understands the words | Who spoke, repeated or authorised the statement? |
| Letter, email or group message | A recipient other than the plaintiff reads it | Recipients, forwarding and workplace vicarious liability |
| Website or online review | A user downloads and comprehends the page | Author, site operator, republication and proof of audience |
| Social-media post or comment | A third party views and understands it | Poster, page administrator, sharer and digital intermediary protections |
| Search result or hyperlink | The result itself communicates defamatory matter, or the defendant participates in communicating linked matter | Automated search exemption, sponsored results and the content of the snippet |
| Printed publication or broadcast | The copy circulates, or the program is heard or watched | Author, editor, proprietor, broadcaster and subordinate distributor |
Publication in defamation on the internet
Uploading content to a server and publication in defamation are not the same event. In Dow Jones v Gutnick, the High Court held that online material is published where it is downloaded and made comprehensible to the reader. The server was in New Jersey; the publication sued upon occurred in Victoria, where subscribers downloaded and read the article and where Mr Gutnick relied upon harm to his reputation.
For Australian multi-state publications, s 11(2) of the Defamation Act 2005 (Qld) applies the substantive law of the Australian jurisdiction with which the harm occasioned by the publication as a whole has its closest connection. The court considers matters including the plaintiff’s connection with each jurisdiction, the extent of publication and the extent of harm. International publication can raise separate forum and choice-of-law questions.
Publication in defamation through social media has a practical feature absent from a private letter: the audience can expand after the original post. A share, repost, quote-post or copied screenshot may be a separate publication by the person who circulates it. Stonegate Legal’s guides to reposting defamatory content in Australia and social media defamation examine those recurring risks.
Who is liable for publication in defamation?
The question is functional, not occupational. The law asks what the defendant did. At common law, a person who intentionally assists in communicating the matter may be a publisher even if that person did not compose the words and did not know they were defamatory. Webb v Bloch (1928) 41 CLR 331 at 363–365 remains an important statement of the principle that persons who participate in and conduce to publication may be liable.
| Potential defendant | Why the person may be a publisher | Qualification |
| Author, speaker or original poster | Creates and communicates the matter | Still entitled to contest meaning, identification, serious harm and rely on defences |
| Editor, publisher, media company or broadcaster | Selects, approves, produces or distributes the publication | Liability turns on participation and applicable statutory defences |
| Employer or principal | May be vicariously liable for an employee or agent acting in the course of employment or authority | A title or corporate office alone does not prove personal publication |
| Republisher or social-media sharer | Communicates the matter afresh to a new audience | Attribution to the original source is not, by itself, a defence |
| Page administrator | May facilitate third-party comments by operating and encouraging an interactive page | Current digital-intermediary provisions must be considered |
| Bookseller, librarian, carrier or subordinate distributor | Participates in distribution | May establish innocent dissemination under s 32 |
| Search engine, host, platform or service provider | May form part of the technical chain of communication | Sections 10C, 10D and 31A may exempt or defend qualifying intermediaries |
Authors, editors and media organisations
The author or speaker will usually be the primary publisher. An editor who approves the matter, a newspaper proprietor that circulates it and a broadcaster that transmits it can also be publishers of the same matter. Publication in defamation can therefore involve several defendants and several acts, although the plaintiff must still plead a sustainable case against each one.
A person interviewed by a journalist is not automatically liable for every word of the finished article. Liability depends on matters such as what the interviewee said, whether the pleaded words reproduce or fairly reflect that contribution, whether the interviewee authorised or assented to publication, and whether later editorial changes break the alleged chain of participation.
Employers, companies, directors and agents
An employer may be vicariously liable where an employee publishes defamatory matter in the course of employment. A principal may also be liable for authorised publication by an agent. That does not mean every director is personally liable for everything published by a company. The pleading should identify the director’s own participation, authorisation or adoption rather than rely on office alone.
Consider a manager who sends an email about an employee to the entire business. The manager is a publisher. The company may face vicarious liability if the email was sent in the course of the manager’s work. A director who neither knew of nor participated in the email is not made a publisher merely by being listed on the corporate register.
Republishers and people who repeat allegations
Repeating somebody else’s allegation ordinarily republishes it. “I am only quoting what was said” does not answer publication in defamation. The republisher has communicated the matter to a fresh audience and may need a defence of their own. The surrounding context can alter the meaning—an allegation may be adopted, reported neutrally, questioned or emphatically rejected—but attribution alone does not confer immunity.
The original publisher may also be responsible for loss caused by republication where repetition was authorised, intended, or the natural and probable consequence of the original publication. This is a question of causation. A confidential complaint sent to one decision-maker is different from a public post crafted to provoke mass sharing.
Case example 1: Fairfax Media Publications Pty Ltd v Voller
In Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346; [2021] HCA 27, media organisations posted links to news stories on public Facebook pages. Third-party users then posted allegedly defamatory comments. The High Court held, by majority, that the media organisations were publishers of those comments because they created and administered the pages and facilitated and encouraged the communication of comments to other users. Knowledge of the particular defamatory words was not required to establish publication.
The decision is often overstated. It determined the publication issue on the agreed facts; it did not decide that every page owner is liable in damages for every comment. Liability still requires the other elements of the cause of action and permits available defences. Queensland has since enacted specific provisions for digital intermediaries, so current advice must examine those sections rather than apply Voller as if the statute had stood still.
Digital intermediaries under the current Queensland Act
The present Act distinguishes a person who is an author, originator or poster from a “digital intermediary”: a person who provides or administers the online service by which digital matter is published. The definition appears in Schedule 5 of the Defamation Act 2005 (Qld) and recognises that more than one intermediary may exist for the same publication in defamation.
Caching, conduit and storage services
Under s 10C(1)–(3), a digital intermediary is exempt if its role was limited to a caching, conduit or storage service and it did not initiate publication, select recipients, encourage the poster, edit the matter or promote it. The exemption applies regardless of actual or constructive knowledge. An internet access provider carrying data, or a cloud storage service holding files for later retrieval, may fall within the section; a service that actively promotes the defamatory matter may not.
Search engines
Section 10D(1)–(3) exempts a search-engine provider where its role is limited to the automated process by which a user generates search results, including the linked matter. The exemption does not apply to results promoted or prioritised because a third party paid or supplied another benefit. Knowledge that the matter was defamatory does not, by itself, remove the exemption.
Under s 10E, the court is to determine these digital-intermediary exemptions as soon as practicable before trial unless there are good reasons to postpone the issue. That can change the economics and sequencing of litigation: a properly framed exemption application may dispose of an intermediary claim before the parties incur the costs of a full defamation trial.
The complaints-based digital intermediary defence
Section 31A(1)–(3) provides a separate defence where the defendant was a digital intermediary, maintained an accessible complaints mechanism and, if given a compliant written complaint, took reasonable available access-prevention steps before or within seven days after receiving it. The complaint must identify the plaintiff, locate the matter and state that the plaintiff considers it defamatory. Under s 31A(4) the plaintiff defeats the defence only by proving malice in establishing or providing the relevant online service.
This is not the same as a concerns notice under Part 3 of the Act. A claimant dealing with an online platform should consider both regimes and ensure the complaint goes through an accessible channel, contains the required information and preserves proof of delivery. Stonegate Legal’s complete guide to concerns notices in defamation explains the separate pre-litigation process.
Case example 2: Google LLC v Defteros
In Google LLC v Defteros (2022) 403 ALR 434; [2022] HCA 27, Google search results included a hyperlink to an earlier newspaper article. A majority of the High Court held that Google did not publish the defamatory matter in the linked article merely by providing the hyperlink. The search result did not repeat the defamatory material or lend assistance to its communication in the legally relevant sense.
The practical point is narrower than “links are safe”. A hyperlink may sit beside a defamatory title, snippet, image or endorsement that itself conveys the sting. The defendant may also have done more than provide a neutral link. Today, s 10D of the Queensland Act supplies a statutory exemption for qualifying automated search results, while sponsored or promoted results require separate analysis.
Innocent dissemination and subordinate distributors
A person may be a publisher at common law yet avoid liability under the defence in s 32(1)–(3) of the Defamation Act 2005 (Qld). The defendant must prove that publication occurred merely as a subordinate distributor; the defendant neither knew nor ought reasonably to have known the matter was defamatory; and the lack of knowledge was not due to negligence. Subordinate distributors include, in appropriate circumstances, booksellers, librarians, postal providers, some live broadcasters and operators of communication systems who lack effective control.
Notice often changes the factual position. Once a distributor receives a sufficiently precise complaint, it becomes harder to say that it neither knew nor ought to have known of the defamatory matter. That does not make liability automatic, but delay, investigation, technical control and the quality of the complaint become evidence. Stonegate Legal’s guide to the innocent dissemination defence deals with the elements in detail.
Real-world examples of publication in defamation
A workplace group chat
A supervisor posts in a 30-person work chat that an employee falsified expenses. Publication in defamation occurs when colleagues read and understand the message. The supervisor is the immediate publisher; the employer may be vicariously liable if the message was sent in the course of employment. A colleague who screenshots the message and sends it to a professional association makes a further publication. The employee must still prove identification, defamatory meaning and serious harm, and each defendant may raise a defence.
A one-star review and the business owner’s reply
A customer publishes a one-star review accusing a tradesperson of theft. The customer is a publisher when another user reads it. If the platform’s involvement is confined to operating an online service, the current digital-intermediary provisions require close attention. If the business owner replies by repeating the allegation about a former employee—“It was our old manager who stole your deposit”—the reply is a new publication in defamation, not merely damage control. The issues raised by reviews are considered further in Stonegate Legal’s guide to defamation and bad online reviews.
When and where publication occurs
For online matter, the common law treats publication as occurring where and when a recipient downloads and comprehends it. For limitation purposes, Queensland has modified the consequences of repeated access. Under s 10AA(1) and (4) of the Limitation of Actions Act 1974 (Qld), the ordinary limitation period is one year and, for electronic matter, the publication date is the day the matter was first uploaded for access or sent electronically to a recipient.
The single-publication rule in s 10AB(1)–(4) treats a substantially identical later publication by the first publisher or an associate as accruing on the first-publication date. The rule does not apply where the manner of the later publication is materially different; prominence and extent are express considerations. Stonegate Legal’s guide to extending the limitation period for defamation explains the extension power and why delay remains dangerous.
The statutory rule is a limitation rule. It should not be confused with the basic proposition that a fresh communicator can make a fresh publication in defamation, or with the assessment of serious harm and damages arising from the actual reach of the matter.
Pleading and proving publication in defamation
A claimant should preserve the whole publication, not only the offending sentence. Capture the URL, account name, date, time, surrounding thread, images, comments, sharing data and any available view metrics. Identify recipients who can say they saw and understood the material. If the publisher is anonymous, platform records, IP information and preliminary disclosure may need to be considered promptly.
The statement of claim should connect each defendant to an identified publication. For a digital case, that commonly means pleading the matter, the platform or communication channel, approximate date, recipients or audience, the defendant’s participation and the facts relied on to infer access and comprehension. Publication in defamation should not be hidden inside a collective allegation against “the defendants”. Stonegate Legal’s guide to pleadings and particulars in Queensland explains the broader pleading discipline.
For a defendant, the first task is to separate the issues. Denying authorship is not necessarily a denial of publication. Conversely, being part of a technical chain does not necessarily defeat an exemption. The pleading should address the act alleged, the defendant’s role, the content actually communicated, the recipient evidence, any corporate or agency relationship, and the statutory pathway relied upon.
Orders against non-party digital intermediaries
A platform need not be liable as a publisher before the court can make an effective order. Under s 39A(1)–(7) of the Defamation Act 2005 (Qld), after judgment or in connection with temporary or final injunctive relief, the court may order a non-party digital intermediary to take access-prevention or other necessary steps. The intermediary must ordinarily receive an opportunity to be heard, although an urgent temporary order may be made first. The section expressly permits an order even where the intermediary is not, or may not be, liable in defamation.
That distinction is useful. A claimant may need harmful material removed or access restricted even if suing the platform itself is legally weak or commercially unattractive. The proper defendant for damages and the entity capable of stopping continued access are not always the same.
Practical conclusions
Publication in defamation is broader than authorship but narrower than mere connection with a communication system. The decisive facts are who communicated what, to whom, by what mechanism and with what degree of participation. The legal analysis then moves to identification, defamatory meaning, serious harm and defences.
For claimants, precision at the outset usually saves cost: preserve the publication, identify actual readers, distinguish original publication from republication, and plead each proposed defendant’s role. For defendants, early classification matters just as much. A primary author, subordinate distributor, search-engine provider and platform administrator may all be described colloquially as ‘publishers’, but Queensland law does not treat their exposure in the same way.
