-3894.
The existing authorities have tended to deal with this situation under
the rubric of the “notice board cases” as discussed above. 78 But as previously
stated, I do not consider that analysis satisfactory. The issue appears to me to be
better viewed as arising in the context of the innocent dissemination defence.
95.
One possible view might be that since the first requirement of the
defence is that the defendant, in Romer LJ’s terms, must show that he was
“innocent of any knowledge of the libel contained in the work disseminated by
him”, he is deprived of the defence from the moment that he learns of the
offending content and he is strictly liable for all subsequent publications.
However, I think that such a rule runs against the grain of the common law
defence.
96.
In the situation posited, the premise is that the defendant is a
subordinate publisher who made the article available when there was nothing in
the work or the circumstances under which it came to him or was disseminated
by him which should have led him to suppose that it contained a libel; and his
lack of awareness was not due to any negligence on his part. The defence
implicitly recognizes that such a defendant may in fact unwittingly publish
matter that is defamatory of the plaintiff, but exempts him from liability
provided he meets the standard of reasonableness.
97.
In my view, it is consistent with the policy underpinning the defence
that the same standard of reasonableness should be applied in a situation of
acquired knowledge. A subordinate publisher should be afforded the continued
protection of the defence if he proves that upon becoming aware of such
content, he promptly took all reasonable steps to remove the offending content
from circulation as soon as reasonably practicable. Such an approach is also in
keeping with the rule which imposes liability on a person as first or main
78
In Section E.
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