First publication rule

10.97 Once private information has been wrongly published once, the subsequent publication of that information by the same person should not generally give rise to a new cause of action. The enactment of a ‘first publication rule’, also known as a ‘single publication rule’, would in effect focus the action on the first publication of the private information. It would also reduce the number of actions brought for serious invasions of privacy.

10.98 This rule may be particularly important for organisations that publish archives of material. If a newspaper invaded someone’s privacy in 2014, the person generally should not be able to bring an action for invasion of privacy in 2020, merely because the material remains published in an archive on the newspaper’s website.

10.99 Several stakeholders recommended the introduction of a single publication rule, but did not suggest a particular model or formulation of the principle.^[105] Were such a rule to be introduced, it would be desirable for it to be consistent across defamation law and the new tort.

10.100 The ‘first publication rule’ diverges from the longstanding principle in defamation law that each publication of defamatory material gives rise to a separate cause of action, which is subject to its own limitation period (the ‘multiple publication rule’).^[106] This multiple publication rule has been said to raise

significant problems due to the possibility of ‘continuous’ or ‘perpetual’ publication in online archives. While internet material remains online and available to be accessed, whether directly or in archives, the limitation period is effectively open-ended, with a fresh limitation period starting to run each and every time defamatory material is accessed online.^[107]

10.101 The UK legislature adopted a single publication rule in s 8 of the Defamation Act 2013 (UK), which may provide a useful model for such a provision for the new tort, as well as for defamation law in Australia. The UK Act provides for a ‘single publication rule’ to prevent an action being brought in relation to republication of the same material by the same publisher after one year from the date of first publication. The cause of action is therefore treated for limitation purposes as accruing from the date of first publication. The limitation period may be set aside under the discretion allowed to the court.

10.102 The provision does not apply where the subsequent publication is ‘materially different’ from the first publication.^[108] A court may consider, among other things, ‘the level of prominence that a statement is given’ and ‘the extent of the subsequent publication’, when determining whether a publication is materially different from the first publication.^[109] The Explanatory Notes offer an example:

where a story has first appeared relatively obscurely in a section of a website where several clicks need to be gone through to access it, but has subsequently been promoted to a position where it can be directly accessed from the home page of the site, thereby increasing considerably the number of hits it receives.^[110]

10.103 If a first publication rule were enacted in Australia, care should be taken in its application to minors. If the privacy of a minor is invaded, the limitation period should start when the minor turns 18, not when the material is first published.