there exists persons with whom the plaintiff has a reputation that occasions an
actionable defamation. It is not defamatory, as such, merely to compile a
statement that, if it were ever published, would be defamatory.
104 Thus, a book that is printed and distributed to booksellers, but withdrawn
before any person is able to purchase and/or read the book, cannot give rise to
damage to reputation or an action in defamation. For the foregoing example, I
leave aside as trivial, the publication of the manuscript to the publisher, or
proof-readers, or, to the extent that it was read by them, to any person involved
in the printing of the book.
105 Applying the foregoing principle to the issue of the public Facebook page, it is
not the compiler of a comment that publishes as a result of her or his
authorship. It is the publisher of a comment in a comprehensible form or legible
form that publishes the comment. The difficulty therein arises as a result of the
circumstance that the third-party commentator, who has compiled the
comment, publishes it by loading it onto the public Facebook page, which is
comprehensible because the media company has rendered it relevantly public.
106 Thus, if an author of a comment, which is defamatory, were to post that
comment on a public Facebook page, publication occurs by virtue of the fact
that the owner of the public Facebook page allows access to the comment by
the publication of the page and allows access by other third-party users to the
comments on the page.
107 It is necessary to deal with a number of authorities that have dealt with the
publishers of search engines and Facebook pages. The defendants seek to
draw comfort from the comments of McCallum J (as her Honour then was) in
Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897, in which her
Honour deals with the principles adumbrated by Hunt J in Urbanchich v
Drummoyne Municipal Council (1991) Aust Torts Reports 81 – 127; (1998) A
Def R 50-035 (Supreme Court (NSW), Hunt J, 22 December 1988, unrep).
108 As may be obvious from the title of the judgment delivered by her Honour, the
plaintiff was seeking damages for defamation against Google Inc, the U.S.
company providing a search engine, known as Google, for the results of a
search, the results of which Google provided to (for the purposes of the