-34publication rule in relation to a person who plays a less important role in the
publication process and thus does not know the content being published or can
do nothing to prevent its publication. Conversely, if the person concerned was
aware of the article’s content and had the opportunity to prevent its
dissemination, there is no reason in principle for excluding the strict publication
rule.
86.
The ability to exercise such control was central to the decision in
Thompson v Australian Capital TV Ltd.70 As noted above, Channel 7 was held
liable as a first or main publisher for re-broadcasting live to air the defamatory
programme produced by Channel 9 since it was clear that Channel 7 had had the
ability and opportunity to prevent publication of the defamatory content but had
decided not to exercise such control. In the main judgment, their Honours
stated:
“It is true that Channel 7 did not participate in the production of the original material
constituting the program. But Channel 7 had the ability to control and supervise the
material it televised. Channel 7's answer is that time did not permit monitoring the
content of the program between its receipt at Black Mountain and its telecast from the
studios in the Australian Capital Territory. That may well be so but it by no means
follows that Channel 7 was merely a conduit for the program and hence a subordinate
disseminator. It was Channel 7's decision that the telecast should be near
instantaneous, a decision which was understandable given the nature and title of the
program but which was still its decision.”71
87.
In Bunt v Tilley, Eady J pointed to knowledge and control (meaning
“an opportunity to prevent the publication”) as the basis for allocating
responsibility:72
“In determining responsibility for publication in the context of the law of defamation,
it seems to me to be important to focus on what the person did, or failed to do, in the
chain of communication. It is clear that the state of a defendant's knowledge can be
an important factor. If a person knowingly permits another to communicate
information which is defamatory, when there would be an opportunity to prevent the
70
(1996) 186 CLR 574.
71
Per Brennan CJ, Dawson and Toohey JJ, at 589-590.
72
[2007] 1 WLR 1243 at §21.
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