124 The fact that Kourakis CJ was in dissent does not detract from the principles stated by him, in which, for all matters relevant to these proceedings, were agreed by the majority. In his reasons for judgment, Kourakis CJ differentiated between primary and secondary participants and dealt, at least in some respect, with innocent dissemination. At [100] of his reasons for judgment, Kourakis CJ referred to the modern dichotomy between acts and accompanying states of mind and referred to the principle that knowledge of the presence of defamatory material was an element of the tort, but one which is conclusively presumed against primary participants. 125 Nevertheless, that presumption also applies to secondary participants, but can be rebutted for a secondary participant, who shows that she or he did not know and could not reasonably have known that the defamatory material had been disseminated or that disseminated material contained defamatory words: Duffy at [100]. His Honour refused to overturn or find differently from the decisions in Emmens (a reference to Emmens v Pottle (1885) 16 QBD 354) and Vizetelly (a reference to Vizetelly v Mudie’s Select Library Ltd (1900) 2 QB 170) as establishing rules that are now too well established to be overruled. It is worth noting that each of the judgments in Emmens and Vizetelly concerned secondary participants in the publication of defamatory material. 126 The Chief Justice continued and sought to describe the first two elements associated with liability for defamatory material by a secondary participant at [102] of his reasons for judgment, in which he said: “[102] I would therefore reframe the first two elements identified by the Judge as follows: 1 the defendant participates in the publication to a third party of a body of work containing the defamatory material; 2 the defendant does so knowing that the work contains the defamatory material. That knowledge is presumed conclusively in the case of a primary participant, but may be rebutted by a secondary participant who does not know and could not reasonably have known of the presence of the material. [103] Irrespective of whether lack of knowledge is expressed as a standalone defence or an element of the liability of a secondary participant, the defendant carries the onus of establishing that it did not know, or could not reasonably have known, that the publication contained the defamatory statement. It is more consistent with the historic irrebuttable presumption of malice to hold a secondary participant liable for all of the contents of the publication, without