93 It is necessary to start from some basic, perhaps trite, propositions. It is often said that publication occurs when a person gains access to an online document. The basis for such a proposition, which, to some extent, has become lore, is the reasons for judgment in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 (“Gutnick”). 94 The statement oversimplifies, although, for most purposes, accurately, the reasons for judgment of the High Court. Further, the statement pays little or no regard to the issue with which the High Court was there concerned. 95 In Gutnick, supra, the High Court was dealing with whether a Victorian plaintiff could sue, in the Supreme Court of Victoria, a United States corporation for libel, in circumstances where the United States Corporation posted a newsletter, the server for which was in Virginia, on the World Wide Web and made it available to subscribers around the world. Given that the matter raised in these proceedings is one that relates to emerging circumstances and principles, it is important to recite some of the fundamental features to which the High Court referred in Gutnick. 96 First, the High Court made the obvious point that defamation law balances the interest in freedom of speech and the free exchange of information and ideas, on the one hand, and, on the other hand, the maintenance of an individual’s reputation in society and that individual’s right to redress from unwarranted damage to that reputation: Gutnick, supra, at [23]. 97 Next, the High Court reiterated that, like all torts, a cause of action arises from damage and, without damage, no action arises. In Australia, as in most common law countries and many States of the United States (often referred to as the “per se States”), damage is assumed, once it is shown that a publication is defamatory. 98 It matters not whether the publisher of the defamatory material intended injury to reputation or acted with reasonable care: Gutnick, at [25], citing Lee v Wilson (1934) 51 CLR 276; [1934] HCA 60. While referring to Pollock (Law of Torts, 13th ed. (1929)) with some muted approval to the effect that defamation may have gone wrong by making the damage and not the insult the cause of action, the High Court makes clear, as was done in Pollock, that it is now too