Proving the Act of Publication for Defamatory Material on the Internet

Perth Defamation Lawyer Richard Graham

The internet has revolutionised the way we communicate, making the sharing of information easier and faster than ever. However, this ease of sharing has also led to an increase in instances of defamation.

Defamation law in Western Australia has evolved to address these concerns, and proving the act of publication for defamatory material online has become a critical aspect of defamation cases.

In this blog post, I discuss the requirements for proving publication of defamatory material on the internet, with reference to the recent decision of Woolf v Brandt [2022] NSWDC 623.

Proving Publication

In the case of defamation claims relating to material posted online, Australian courts have generally adopted a consistent approach regarding the proof of publication.

According to Sims v Jooste (No 2) [2016] WASCA 83 at [19], a plaintiff must plead and prove that the material complained of had been downloaded and viewed by somebody.

However, the plaintiff does not necessarily need to provide particulars of the identity of the person or persons who downloaded the material.

Drawing Inferences from a Platform of Facts

The courts have acknowledged that an inference to the effect that the material complained of has been downloaded by somebody might be drawn from a combination of facts.

Such facts may include the number of 'hits' on the site where the allegedly defamatory material was posted and the period of time over which the material was posted on the internet (Sims v Jooste (No 2) [2016] WASCA 83 at [19]).

This approach of relying on a "platform of facts" has been endorsed in Stoltenberg v Bolton [2020] NSWCA 45 at [33].

Particulars of Downloading

In cases predating the internet, courts required plaintiffs to specify the names of persons to whom allegedly defamatory material was published (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993).

However, with the advent of the computer age, providing particulars of downloading, such as the names of the persons who downloaded the material, has become general practice (Cronau v Nelson [2018] NSWSC 1769 at [11] –[14]; Stoltenberg v Bolton at [55] –[56]).

The court in Newman v Whittington [2022] NSWSC 249 emphasized that it is not sufficient for a plaintiff to merely assert that the publication being on the internet must have been seen by someone.

Key take-aways

  • Proving the act of publication for defamatory material on the internet is a crucial element of defamation cases in Western Australia.

  • To establish publication, a plaintiff must demonstrate that the material complained of has been downloaded and viewed by at least one person.

  • Courts may draw inferences from a combination of facts, such as the number of hits on a site and the duration the material was available online.

  • Providing particulars of downloading, such as the names of persons who downloaded the material, is now general practice.

Cases mentioned in this blog post:

  1. Woolf v Brandt [2022] NSWDC 623

  2. Sims v Jooste (No 2) [2016] WASCA 83

  3. Stoltenberg v Bolton [2020] NSWCA 45

  4. Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

  5. Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993

  6. Cronau v Nelson [2018] NSWSC

  7. Newman v Whittington [2022] NSWSC 249