Publication, as we have previously seen in Defamation Law in Australia¸ which you can read here: https://cpl.allenlaw.au/defamation-law-in-australia/,  is one of the four (4) things (or ‘elements’ to use the legal term) a plaintiff in a defamation case will be required to satisfy the Court. Publication means that the defamatory matter has been published to a third person

This article will address in some detail the first aspect of any defamation claim, and that is publication, namely, when is something (matter), taken to have been published?

Generally speaking, publication is the easiest element of the tort to establish. Occasionally, however, it can be difficult. It may not be clear when another person is said to have seen, heard, or otherwise had the defamatory matter communicated to them.

Publication for the purposes of the tort of defamation throughout all Australian jurisdictions requires that the ‘defamatory thing’ (or matter, as it is referred to in the Defamation Acts) has been published to a third person. Accordingly, in order to establish the first element, that is, the element of publication for the purposes of Australia defamation law, it will be necessary to adduce some evidence that the defamatory statement or matter was published to a person other than yourself.

The type and amount of evidence needed to establish this element, however, is necessarily dependent upon the type of matter in question. We exam the types of publication, and what types of evidence would necessarily be required to establish publication in those circumstances, below.

Oral defamation

Oral defamation, being a somewhat notoriously difficult type of defamation action, is where the type of matter in question is spoken words. The reason this type of defamation action is more difficult than the rest is that in our experience, most defamatory conversations are:

1. 1. not recorded; further

2. 2. even if they were recorded, would usually be inadmissible in court (see, for example, section 6 of the Surveillance Devices Act 1999 (Vic)*); and

3. 3. peoples’ recollection as to what was said in a conversation, and where that conversation took place, is highly likely to be forgotten given a sufficient amount of time.

In any event, the type of evidence which would ordinarily establish that oral defamation took place, would be the persons which heard the words the subject of the oral defamation being spoken by the defendant. In those circumstances, those witnesses would need to make themselves available to give a written statement at first instance, give evidence at court, or alternatively, be subpoenaed to give evidence at court.

Written defamation

The majority of defamation actions concerning the publication of words are those that concern words in written form. The language in which the words are published is not relevant, so long as one of the persons to whom it was published was capable of reading, comprehending and understanding that language.

An example of this is if a Facebook post was published in say, Indonesian, but the only person who read it was someone who did not understand Indonesian, then publication has not occurred.

However, if it was published to multiple people, the majority of which cannot read, understand and comprehend Indonesia, but at least one of them can, then publication has occurred.

In today’s technological advanced and connected world, most people use some form of social media, such as Instagram, Facebook or Whatsapp, and this is where a lot of ordinary, day to day defamation takes place.

Historically, most written defamation occurred in newspapers and other circulars; and most large scale defamation cases generally involve major media organisations, whether or not in print form, television, radio or online newspapers/videos.

Other defamatory matter

Other matter can also constitute defamation, for example, a theatrical play or performance of some kind, as well as a painting depicting a particular thing. However, these are much less common forms of defamation, due to their inherent nature to be misleading, or interpreted more broadly, and not necessarily in a defamatory manner. This is opposed to words which, generally speaking (pun intended) are more precise and accurate in their meaning.

If you have been defamed, or are the subject of a defamation claim or have received a concerns notice, please contact us by email at lee@cpl.allenlaw.au or alternatively on 0429 070 261, and we will be happy to assist you.

This article is general in nature and is not to be relied upon as legal advice on any subject matter. The article should not be used as a substitute for legal advice from a qualified legal practitioner, as the law could change or may not be applicable your particular matter.

*subject to exceptions.