Clarifying the meaning of 'publication' of defamatory matter in the age of the internet

The concept of ‘publication’, which is central to establishing liability in defamation, is conceptually uncertain as to its definition and scope. The uncertainties have been brought into sharp relief in the proliferation of cases concerning the internet. Such cases demonstrate the potentially wide application of ‘publication’ and the inconsistencies as to its meaning. Although these difficulties have long existed, until they are resolved, we will continue to struggle to apply the concept of ‘publication’, be it in the context of new or ‘old’ fact-patterns. This article considers the uncertain parameters of the concept of ‘publication’ and, in particular, the relevance of knowledge of the content of the defamatory material in establishing such ‘publication’. One of the problems raised by a wide definition of publication is that it puts pressure on defences to relieve innocent parties from liability, especially parties who have had only a peripheral involvement in the commission of the tort. The article argues that the law of defamation has largely sidelined an analysis of liability of such peripheral players in terms of established concepts of accessorial liability. Recent cases involving internet providers have used the concept of knowledge as one means of restricting the meaning of ‘publication’, thereby providing greater protection to parties who are merely peripheral participants in the communication of defamatory matter.