Kiefel Keane Gleeson CJ J J 5. defence at common law hold that if the defence is made out there is taken to have been no publication by a defendant13. But as Meagher JA and Simpson A-JA observed14, such a question was not relevant because the appellants placed no reliance on the "never published" principle. It will be observed that the position of the appellants has now changed. The appellants' contentions 18 The appellants now contend that the common law requires that the publication of defamatory matter be intentional. It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words. This is said to follow from what was said by Isaacs J in Webb v Bloch15 and to accord with the holding in Trkulja v Google LLC16, that Google's intentional participation in the communication of the defamatory matter supported a finding of publication. 19 As mentioned earlier in these reasons, the appellants do not rely on the statutory defence of innocent dissemination as providing an answer to whether they are publishers of the alleged defamatory material. However, they submit that the cases which concern the common law defence of innocent dissemination, commencing with Emmens v Pottle17, support a requirement of intention to publish defamatory matter. They submit that the cases show that publication is more than mere dissemination. Publication is dissemination with an element of intention. 20 The approach of the courts in these cases, the appellants say, is not to regard publication as having occurred and then excuse the defendant from liability if the defence is made out. It is to allow the defendant to demonstrate that there was no publication. The cases treat publication as an evidentiary presumption which is rebuttable on proof of the requirements of the defence, relevantly a lack of knowledge that the matter being communicated is defamatory or a lack of intention to communicate it. 13 Including by reference to Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288 and Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 585-586. 14 Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 721 [93]. 15 (1928) 41 CLR 331 at 363-364. 16 (2018) 263 CLR 149 at 163 [38]. 17 (1885) 16 QBD 354.