-1330.
As Gaudron J pointed out in Thompson v Australian Capital TV
Ltd,26 the defence has been adopted not only in subsequent English cases, but
also in Canada, Australia and New Zealand. In some jurisdictions, statutory
defences along the same lines have been enacted. Thus in England, Lord
McKay of Clashfern LC introducing the bill which became section 1 of the
Defamation Act 1996, described it as “a modern equivalent of the common law
defence of innocent dissemination”. 27 Hong Kong has not introduced such
legislation and the defence which concerns us is that which exists at common
law.
31.
Although in both Emmens and Vizetelly, 28 it was suggested that
successful invocation of the innocent dissemination defence leads to the
defendant being deemed not to have published the libel at all, I respectfully
consider the better view to be that stated by Duncan and Neill in an earlier
edition of their work,29 noted by Brennan CJ, Dawson and Toohey JJ in their
joint judgment in Thompson v Australian Capital TV Ltd,30 namely, that:
“... it would be more accurate to say that any disseminator of a libel publishes the libel
but, if he can establish the defence of innocent dissemination, he will not be
responsible for that publication.”
26
(1996) 186 CLR 574 at 592.
27
See Godfrey v Demon Internet Ltd [2001] QB 201 at 204. Section 1(1) of the 1996 Act
provides: “(1) In defamation proceedings a person has a defence if he shows that--(a) he
was not the author, editor or publisher of the statement complained of, (b) he took
reasonable care in relation to its publication, and (c) he did not know, and had no reason
to believe, that what he did caused or contributed to the publication of a defamatory
statement.”
28
Adopted in McPhersons Ltd v Hickie (unreported) No. 40290 of 1994 Supreme Court of
New South Wales Court of Appeal, p 6 per Powell JA; and in the recent English Court of
Appeal decision in Tamiz v Google Inc [2013] EMLR 14 at §§26-36, per Richards LJ.
29
Duncan and Neill on Defamation, 2nd Ed, 1983, p 110, fn 3. The discussion in the
current edition focusses on the statutory defence provided by section 1 of the Defamation
Act 1996.
30
(1996) 186 CLR 574 at 586.
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