Innocent Dissemination Defence in Defamation
The defence of innocent dissemination plays a crucial role in defamation law in Queensland, Australia.
It protects individuals and organisations that unknowingly publish defamatory material without fault or negligence.
This guide explains the statutory framework, relevant case law, and how the defence operates in both traditional and digital contexts.
What Is Innocent Dissemination?
Section 32 of the Defamation Act 2005 (Qld) (“the Act”) provides:
“32 Defence of innocent dissemination
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.”
Therefore, under section 32 of the Act, a defendant must prove:
- They published the matter as a subordinate distributor.
- They neither knew nor ought reasonably to have known that the matter was defamatory; and
- Their lack of knowledge was not due to negligence.
Definition of a Subordinate Distributor
Section 32(2) of the Act clarifies that a subordinate distributor:
- Was not the first or primary distributor; and
- Was not the author or originator; and
- Did not exercise editorial control.
Examples of Subordinate Distributors
Subordinate distributors include
- Booksellers, newsagents, news vendors.
- Wholesalers or retailers of published material.
- Providers of postal or similar delivery services.
- Broadcasters of live programs where there is no editorial control.
- Providers of electronic content services, including distribution and hosting.
- Operators of or providers of access to communication systems such as internet service providers.
This definition clarifies older uncertainties in the common law, especially concerning internet and electronic content.
Innocent Dissemination – Common Law Origins
Before statutory provisions were introduced, the defence of innocent dissemination existed at common law.
This applies where a defendant did not know that the publication contained defamatory material, did not know it was likely to be defamatory, and where their ignorance was not due to negligence.
This principle was clarified in Sun Life Assurance Company of Canada v W H Smith & Son Ltd (1933) 150 LT 211 at 212, where the focus became whether the defendant knew or should reasonably have known that the publication contained defamatory content.
This approach was later confirmed in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 487.
Liability in these situations generally depends on whether the defendant was involved in or authorised the publication.
The defence is typically available only to specific groups such as distributors or carriers, including newsagents, booksellers, librarians, and telephone companies.
Other parties, like printers, broadcasters, and service providers, have also tried to rely on the defence.
The idea behind innocent dissemination has evolved alongside changes in publishing technology.
It originally applied to printed material but now also covers publications made through broadcasting and electronic transmission.
In R v Nutt (1729) 1 Barnard 306, for example, the defendant was indicted as one of the publishers of a treasonable libel.
However, the evidence against her was only that she kept a pamphlet shop where the libel was sold. No evidence was offered to show that she knew it had been brought in or sold out of her shop.
The only evidence was that the libel was sold in her shop. There was no evidence she knew about it, and she proved she lived a mile away, was bedridden, and likely knew nothing about the shop’s operations.
Her counsel, Mr Kettleby, argued that while a master can be civilly liable for a servant’s acts, that should not apply in a criminal prosecution, and he pointed out that not everyone who handles a libel (like a post-boy) is guilty of publishing it.
The Chief Justice disagreed with the general principle and cited precedent that a shop owner is responsible for books sold in the shop, even without direct knowledge.
However, the jury was sympathetic — they thought it was a hard case given the facts, and refused to find her guilty outright. Instead, they only reported the facts as they were given in evidence, rather than giving a general verdict of guilty.
Ultimately, because the jury would not convict, the Attorney General withdrew one juror — a procedural device at the time to avoid a verdict and leave the case unresolved rather than forcing an acquittal.
The defendant was not convicted, and the prosecution withdrew a juror to avoid an outright not-guilty verdict. The case effectively ended without a conviction, leaving it unresolved.
In contrast, in Chubb v Flannagan (1834) 6 C&P 431; 172 ER 1307, The plaintiff, R. R. Chubb, had formerly been in partnership with the defendants, Flannagan & Nutting, carrying on a seed and florist business at No. 9 Mansion House Street.
When the partnership dissolved, Chubb opened a new shop in Newgate Street and issued a printed bill thanking customers for their support at the old address and announcing that “R. R. Chubb & Co.” was now operating from the new premises. He also placed over the door of his new shop the sign: “Chubb & Co., removed from opposite the Mansion House.”
The defendants, believing Chubb’s conduct was misleading — as though their long-established business had relocated — published, in the Horticultural Journal and Florists’ Register, an advertisement and a paragraph in “Chit Chat”.
The advertisement cautioned customers against a “fraudulent representation” that their business had moved and disclaimed any connection with the new shop, calling the circumstances “grossly misrepresented and highly discreditable.”
The “Chit Chat” paragraph went further, describing the plaintiff as a brazen, low-class impostor, barely above the level of a porter.
Chubb sued for libel over both the advertisement and the “Chit Chat” passage.
The main issues:
- Were the defendants publishers of the libellous material?
- Did the words apply to the plaintiff?
- Were the words defamatory?
- What damages, if any, should be awarded?
On the advertisement, the court noted that the defendants pleaded justification but had not proved it. The jury was entitled to treat that as aggravating the libel.
On the “Chit Chat” paragraph, the court directed the jury to consider whether the defendants knowingly sold the libellous material.
Evidence suggested they were aware of the publication’s contents.
The judge left the question of whether the words were libellous, and the amount of damages, to the jury.
The verdict was for the plaintiff who were awarded £50 in damages.
Innocent Dissemination – Key Principle
The key principle is the distinction between participation and authorisation.
Passive distributors without editorial control may be protected. Once a distributor is notified of defamatory content or has editorial authority, they assume liability.
The defence is context-specific and depends on the factual situation.
For example:
- Emmens v Pottle (1885) 16 QBD 354: Newspaper vendor not liable unless they knew or ought to have known of the defamatory nature. It was said “[a] newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury’.
- Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170: Libraries held liable after being put on notice of defamatory material as they did not stop the distribution of the material.
- McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348: Australian courts recognised technological changes occurring, as it was originally accepted that a printer would have inevitably acquired knowledge of what was being printed. However this has now changed and it has been accepted that printers who had no reason to know and no reason to suspect the defamatory material printed contained such material. Thus, allowing printers to invoke the defence.
- Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574: The High Court held that a television station retransmitting live content with editorial control was not a subordinate distributor and could not invoke the defence.
Innocent Dissemination and ISPs in Queensland
Schedule 5, Clause 91 of the Broadcasting Services Act 1992 (Cth) which governed online content regulation and liability for ISPs and content hosts — was repealed on 23 February 2021 when the Online Safety Act 2021 came into effect.
Section 235 provides that internet service providers (“ISPs”) and Internet Content Hosts (“ICHs”) are not liable for defamatory content if:
- They were unaware of the content’s nature.
- They are not required to monitor or investigate content.
Unlike the statutory defence under the Defamation Act 2005 (Qld), there is no negligence requirement for ISPs and ICHs under the Act.
Additionally, they cannot be required to monitor, investigate, or keep records of the content they host or transmit.
However, the ISP or ICH bears the onus of proving the lack of awareness of the defamatory nature of the content.
If an ISP or ICH wishes to rely on the protection of innocent dissemination, they must prove they genuinely did not know about the nature of the content in question.
Unlike the innocent dissemination defence under defamation law, there is no obligation for ISPs or ICHs to show they exercised reasonable care.
Their liability arises only if they knew or were made aware of defamatory content and failed to remove it.
If they follow an approved industry code under the Act, they are also protected from civil liability, including defamation claims
Relevant Case Law for ISPs
- Godfrey v Demon Internet Ltd [2001] QB 201: ISP held liable after being notified of defamatory content and failing to remove it.
- Bunt v Tilley [2006] EWHC 407: An ISP that provides a “passive instrumental role” not considered liable as publishers of defamatory material.
- Google Inc v Trkulja [2016] VSCA 333: Google as a search engine operator could rely on innocent dissemination up until reasonable notice of the defamatory content.
- Tamiz v Google Inc [2013] EWCA Civ 68: Search engine operators are considered secondary publishers. They can generally rely on the innocent dissemination defence up until they are notified of defamatory material and for a reasonable period after receiving that notice. If they fail to remove the defamatory content within that reasonable timeframe, they forfeit the protection of the defence
Fairfax Media Publications Pty Ltd v Voller
The landmark case of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 examined whether media companies could be held responsible for defamatory comments posted by third parties on their public Facebook pages.
The High Court considered whether an intention to publish is necessary to establish publication in defamation law.
The Court ultimately held that defamation is a tort of strict liability, meaning liability attaches to the act of publication itself, regardless of whether the publisher intended to communicate the defamatory matter.
Importantly, the judgment clarified that media outlets might not always be automatically liable for third-party comments.
Liability hinges on analysing the precise conduct that constitutes communication of the defamatory matter and identifying the legal basis for holding the defendant responsible.
In some instances, liability may arise through omission. For example, if a media outlet fails to remove defamatory comments after becoming aware of them, thereby continuing a third party’s wrongdoing.
The Sydney Law Review commentary on this decision highlights the complexities of applying innocent dissemination principles to digital platforms. It underscores two key points:
- Strict Liability for Publication: Under Australian defamation law, publication is treated as a strict liability concept. Intention to publish is not a required element. Simply communicating defamatory material, even through internet intermediaries like social media pages, is sufficient to establish liability.
- Innocent Dissemination as a Defence: The defence allows certain parties to avoid liability if they can show they had no knowledge of the defamatory content and were not negligent. This is consistent with both common law and statutory approaches.
Professor David Rolph emphasises that it is essential to separate the conduct that constitutes publication from the basis of legal responsibility for that publication.
This is particularly relevant for internet intermediaries, where liability may arise from failing to act (such as not removing defamatory content once notified) rather than from actively publishing the material.
Practical Implications for Businesses and Organisations
For Queensland publishers, booksellers, ISPs, and libraries, the innocent dissemination defence offers important protection if:
- The party acts purely as a subordinate distributor.
- There is no knowledge or negligence regarding the defamatory content.
Once notified of defamatory content, however, failure to act may remove that protection. Businesses should:
- Establish procedures for handling notifications of potentially defamatory content.
- Review contracts and service terms to clarify roles as subordinate distributors; and
- Monitor compliance with industry codes of practice where applicable.
Final Thoughts on Innocent Dissemination
The innocent dissemination defence remains a vital mechanism within Queensland defamation law.
It reflects a balance between protecting reputations and recognising the realities of content distribution in both traditional and digital media.
For any business or organisation involved in content distribution, understanding the limits and obligations tied to this defence is essential.
If you require assistance navigating defamation law in Queensland, including how the innocent dissemination defence may apply to your business, contact our experienced team today.
Innocent Dissemination – FAQ with Answers
The innocent dissemination defence is a crucial safeguard in Queensland’s defamation law, protecting parties who unknowingly distribute defamatory material without fault.
Below are answers to common questions about how this defence works, who can rely on it, and its application in both traditional and digital contexts.
What is the innocent dissemination defence?
The innocent dissemination defence protects certain parties who unknowingly distribute defamatory material without negligence. It applies if they acted as subordinate distributors, lacked knowledge of the defamatory nature, and their ignorance was not due to carelessness. The defence is codified in section 32 of Queensland’s Defamation Act 2005 and continues principles from common law.
Who qualifies as a subordinate distributor?
A subordinate distributor is someone who was not the author, originator, or primary distributor of the material, and did not exercise editorial control. Examples include booksellers, librarians, ISPs, and delivery providers. These parties handle content passively, without shaping or approving it, and therefore may rely on the defence if they act reasonably.
Does the innocent dissemination defence apply online?
Yes, the defence applies to digital contexts, including ISPs, internet content hosts, and website operators. ISPs and hosts are generally not required to monitor content proactively but may lose the defence if they ignore notifications of defamatory content. Courts have extended the principles of innocent dissemination to the internet while requiring reasonable care once notified.
What does “without negligence” mean in this context?
For the innocent dissemination defence to succeed, the subordinate distributor must show that their ignorance of the defamatory material was not due to negligence. This means they took reasonable care in their operations and acted promptly once notified of any potential defamation. Carelessness or deliberate indifference could invalidate the defence.
Can a publisher rely on this defence after being notified?
No, the defence is generally unavailable if the subordinate distributor is notified of the defamatory content and does nothing about it. Once a party is put on notice, they are expected to investigate and, if appropriate, stop further publication or distribution to avoid liability. Prompt action is crucial to maintaining protection.
Does the defence apply to social media operators?
Yes, in certain circumstances. Operators of social media platforms can sometimes rely on innocent dissemination if they have no knowledge of defamatory posts by users. However, once notified, they must act reasonably to remove or block the content. Courts emphasise that passive facilitation is different from active participation in publication.
How did Fairfax v Voller affect this defence?
In Fairfax Media v Voller, the High Court confirmed that publication is a strict liability tort—intention is not required. Media companies can be liable for defamatory comments on their social media pages if they have control over the platform. However, innocent dissemination remains a defence for those without knowledge and editorial control.
What are some key common law cases on innocent dissemination?
Important cases include Emmens v Pottle, where a newspaper vendor was not liable without knowledge; Vizetelly v Mudie’s Library, where liability arose after notice; and McPhersons Ltd v Hickie, where Australian courts recognised modern technological realities for printers. These cases illustrate the principle that passive distributors can avoid liability if acting reasonably.
Do ISPs have a duty to monitor content?
No, under the Online Safety Act 2021, ISPs and internet content hosts are not required to proactively monitor, investigate, or record content. They are protected from liability as long as they genuinely lacked knowledge of the defamatory material and act reasonably once notified. However, failure to act after notice can lead to liability.
Can editors or authors rely on innocent dissemination?
No, editors, authors, and primary publishers generally cannot rely on the innocent dissemination defence. The defence is intended for subordinate distributors who play a passive, mechanical role in distribution. Those who exercise editorial control or originate the content are considered responsible for its publication and cannot claim ignorance.
What is the main purpose of this defence?
The purpose of the innocent dissemination defence is to balance protecting reputations with recognising the realities of content distribution. It protects parties who play no active role in creating or shaping the material and who cannot reasonably be expected to check every piece of content they distribute before publication.
Is the defence available in criminal cases?
No, innocent dissemination primarily applies to civil defamation claims. In criminal cases, courts have historically applied stricter principles of liability, sometimes holding shop owners responsible for libellous material sold in their shops. However, the defence’s civil application recognises the need for fairness towards passive distributors in complex distribution chains.
What are some practical tips for businesses?
Businesses should establish clear procedures for handling complaints, act promptly upon notification of defamatory material, and ensure contracts clarify their role as subordinate distributors. They should also document actions taken after notice and, where relevant, follow industry codes of practice to strengthen their ability to rely on the defence.
What happens if a subordinate distributor fails to act after notice?
If a subordinate distributor is notified about potentially defamatory content and fails to investigate or stop further distribution, they may lose the protection of the innocent dissemination defence. Courts expect reasonable steps to be taken once aware of the issue. Continuing to distribute defamatory material after notice amounts to negligence.
Why is this defence still important today?
Innocent dissemination remains vital in today’s digital and traditional publishing environments. With the explosion of online content and complex distribution chains, many parties handle material without knowing its nature. The defence ensures that liability falls only on those who knowingly or negligently participate in publishing defamatory content, preserving fairness in defamation law.
