After almost a decade of deliberation, the Model Defamation Amendment Bill 2020 was passed in the New South Wales Parliament last month. The reforms import a rational single publication rule but leave several uncertainties in play for digital media platforms.
The introduction of a single publication rule assumes that there is only one publication of defamatory material when it is distributed to any number of recipients - other than the person defamed - and over any expanse of time.
The material is 'published' when it is first made accessible to a member of public, setting in motion the 12-month limitation period for defamation lawsuits. For material published online, this means that the clock starts ticking from the point of upload. Under the single publication rule, any subsequent publication of material that is 'substantially the same' and not 'materially different' to the first publication does not give rise to a separate cause of action.1
This reform stands in stark opposition to the former multiple publication rule which posits that each and every communication of defamatory matter gives rise to a separate cause of action.2 The former rule emphasises communication as a bilateral act which is effected anew on each occasion that a recipient comprehends the distributed material.
In the realm of digital media, the multiple publication rule assumes that each and every download of online material constitutes a separate publication, which effectively resets the limitation period for defamation actions. This means that an article posted and maintained online may remain actionable for libel for an indefinite duration.
Digital Industry Group Inc. submissions to the Australian Council of Attorneys-General
In May 2019, the Digital Industry Group Inc. (DIGI) - whose members include Google, Facebook, Twitter, Amazon and Verizon Media - made submissions to the Australian Council of Attorneys-General (CAG) in consultation with Corrs. Our submissions advocated for a single publication rule as a mechanism to enhance freedom of expression in the modern technological landscape and to prevent circumvention of the limitation of action period.
Its welcome introduction is not, however, without shortcomings. The ambit of protection for publishers who republish substantially the same material under the single publication rule is confined to situations where the subsequent publication is made by the original publisher or an associate - that is, an employee, contractor or associated entity of the original publisher.
This restriction on the single publication rule is fundamentally ill-suited to the modern digital age in which material posted by a media company is often subsequently shared, and thus republished, by unaffiliated individuals or organisations on social media platforms such as Facebook or Instagram. The subsequent sharing of material by such individuals or entities will have the effect of resetting the limitation of action period, and so the rabbit hole of indefinite liability prevails.
The problem does not end there for the original publisher as a shrewd plaintiff may mount an argument based on the rule in Sims v Wran3 that republication of substantially the same material by, say a Facebook user who shares a 12-month old post by a media company which is of continued relevance, is a natural and probable consequence of the original publication. The Sims v Wran principle thereby exposes the original publisher to open-ended liability for subsequently republished material in a landscape where the sharing of material, however old, is commonplace.
A similar issue is posed in situations where, for example, a TV series originally published on an international broadcasting channel is subsequently broadcast by a streaming platform such as Stan. The republication of the material by the streaming service will not be action-proof in circumstances where it is not an associate of the original publisher.
For these reasons, DIGI's submission that the single publication rule should apply to the republication of material by any person, and not just the original publisher or an associate, would be better suited to the modern era. The reforms also represent a missed opportunity to address the challenges of the Voller4 decision, in which media companies were held to be primary publishers of third party comments made on their public Facebook pages, considered by our team here.
1Schedule 4, Section 1A of the Limitations Act
2 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.
3 Sims v Wran  1 NSWLR 317.
4 Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766.
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