Digital Defamation and the ‘public document’ defence – A tale of Nyoni

Key Points 
  • A complete defence is available to a defamation action if the matter complained of was contained in public document’. [1]
  • The defence is primarily available to government and statutory bodies who publish information including on online public registers published in the course of their statutory duties.
  • A defence established for publication of a ‘public document’ is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
In order to succeed in a defamation action, a plaintiff must demonstrate that the ‘defamatory’ material was ‘published’. In a digital context, if ‘defamatory’ material is placed on the internet, for example on webpages or social media platforms, 'publication' for the purposes of defamation will occur once that material is downloaded, read and comprehended by any users.
This begs the question as to how possibly defamatory information posted online by governments and statutory bodies in the course of their duties are treated at law.

In Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 the Federal Court of Australia (Federal Court) considered whether displaying conditions imposed on Mr Nyoni’s registration as a pharmacist by the Pharmacy Board of Australia (Board) on an online register (online register) operated by the Australian Health Practitioner Regulation Agency (Agency) was a defamatory publication at law. In resolving this issue, the FCA also considered whether the register attracted the ‘public document’ defence.
In this case, Mr Nyoni was convicted of breaches of the Poisons Act 1964 (WA) and conditions were imposed on his registration as a pharmacist. These conditions were then published jointly by the Board and Agency on the online register.
Mr Nyoni commenced proceedings against the Board and the Agency, alleging that the publication of the conditions imposed on his registration on the online register was defamatory.
Upon consideration, the Federal Court found that the conditions displayed on the online register were ‘defamatory’ on the grounds that any reader would conclude that Mr Nyoni was addicted to drugs and thereby unfit to practise as a pharmacist. In addition, the Federal Court found that by displaying the conditions on the online register, ‘publication’ occurred and continued until the conditions were removed. On this basis, Mr Nyoni’s claim would, on its face, likely be made out. 
The Federal Court then turned to consider the applicability of the defence. It noted the definition of ‘public document’ which included “any record or other document open to inspection by the public that is kept under the legislation of a state, a territory or the Commonwealth by one of their statutory authorities, or by an Australian court” (Section 28(4)(e) of the Defamation Act 2005 (WA)).
Given that the online register was authorised under the Health Practitioner Regulation National Law and intended to be open to inspection by the public, the defence operated to absolve liability for both the Board and Agency for the defamatory publication.
What does this mean?

Online publication of conditions and/or disciplinary action imposed on a professional/practitioner could constitute defamation. However governments and/or statutory bodies would likely be protected from liability under the ‘public document’ defence where the information published is authorised under a specific statute.
While this case considers the issue in light of the Defamation Act 2005 (WA), the ‘public document’ defence is replicated in defamation legislation in all other States and Territories.

[1] As defined - Defamation Act 2005 (NSW) s 28(1); Defamation Act 2005 (Vic) s 28(1); Defamation Act 2005 (Qld) s 28(1); Defamation Act 2005 (SA) s 26(1); Defamation Act 2005 (WA) s 28(1); Defamation Act 2005 (Tas) s 28(1).

Post by Chris Moore, Chloé Ellis and Elham Bolbol

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