The concept of publication in defamation law

Abstract

Publication is an element of the tort of defamation. Increasingly, internet technologies raise difficult issues of publication. Because mass media technologies did not present doctrinal problems about the concept of publication on a similar scale, internet technologies have exposed how poorly understood the basic principles of defamation law are. The principled application of defamation law to resolve novel issues presented by rapidly developing internet technologies require a sound understanding of these fundamental principles. Yet recent case law suggests that there is significant confusion about the basic principles of publication in defamation law. This article examines the role of fault and strict liability in publication, the proper relationship between innocent dissemination and publication, and publication by omission. It argues that the organising question about publication in all cases should be: What is the precise conduct constituting the communication of the defamatory matter, whether the conduct is an act or an omission, for which the defendant is responsible? By focusing on the basic principles of defamation law specifically and the general principles of tortious responsibility, such an approach will facilitate the principled resolution of difficult issues of publication in defamation law as they arise in the future.