The High Court of Australia has dismissed an appeal[1] by media outlets Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd and confirmed that each of the appellants “published” comments made by third -party Facebook users on links shared on their public profiles.  Accordingly, they were liable for defamatory comments made.

The facts

Each of the media outlets publish newspapers which circulate in New South Wales, operate television stations, or both.  As most businesses do, they also maintain public Facebook pages on which they share content relating to their news stories, including sharing links to their articles on their websites.   Through their Facebook pages, they engage with their audiences and invite comment on their posted content from third-party Facebook users.

Mr Dylan Voller, the respondent, was the subject of a number of news articles published by the appellants on their respective Facebook pages, including articles regarding his incarceration in a juvenile justice detention centre in the Northern Territory.  As is usually the case, third-party Facebook users made comments on the posts, some of which were allegedly defamatory of Mr Voller.

The issue

The issue was not whether the comments themselves were defamatory, but rather whether the media outlets were ‘publishers’ of the defamatory comments at law and therefore liable to Mr Voller for damages suffered as a consequence of the publication.

In the law of defamation, a person’s reputation will suffer harm when a defamatory publication is made to a third party; it is the act of publication that is the actionable wrong.

So, the question was whether, by allowing third-party Facebook users to post comments on their shared content, the media outlets could be said to have published those comments.

The appellants’ argument

The appellants unsuccessfully argued that to be liable as a publisher in the law of defamation, a person must intend to communicate the offending words, not just be a “passive instrumental role in the process of publication”[2].  In their view, they had merely administered a public Facebook page on which third-parties could publish material.  They did not participate in the publication and were not relevantly instrumental in their publication.  They were to be considered the same as a supplier of paper to a newspaper owner, or the supplier of a computer to an author.[3]

The decision

The majority of the High Court rejected the appellants’ contentions and found that:

  • publication means any act of participation in the communication of defamatory matter to a third party – all that is required is a voluntary act of participation in its communication[4];
  • a publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated, or their intention to communicate it[5] – defamation is, and always has been, a tort of strict liability and therefore, intention is irrelevant;
  • the appellants intentionally used a platform provided by Facebook, created and administered a public Facebook page and then posted content on that page. By doing so, the appellants encouraged and facilitated publication of comments from third-parties and were thereby publishers of those comments[6].

Many might think the decision is illogical and out of kilter with the realities of the world today.  It must be borne in mind that in coming to its decision, the High Court was bound by existing strict common law rules derived from previous decisions of the High Court.  Justices Gageler and Gordon remarked that the “technological and sociological development” caused by the advent of the Internet “has not been shown to warrant relaxation of the strictness of the common law rule”[7].  Reform can only be achieved through legislation.

What does this mean for me?

We now have certainty that under the common law of Australia, operators of social media pages (such as Facebook) which are viewable by the public and which allow comments from third-parties will generally be considered publishers under the law of defamation.

Clarity in the law is generally a good thing for the business community.  However, this decision highlights yet another trading risk that needs to be managed.

Accordingly, organisations should swiftly review their social media engagement framework and risk policy and implement vetting or moderation of public comments to reduce the risk of unintentionally publishing a comment that could be defamatory.  This will undoubtedly require commitment of human resources which some organisations will struggle to afford.  We note that Facebook allows publishers to switch off comments on some posts so organisations should consider disabling comments where they cannot commit an individual to monitor comment threads.

Organisations should also consider reviewing their insurance coverage to ensure that they are covered for potential defamation risks.

The decision is yet another demonstration that the law of defamation is ripe for reform to account for the shift in the process and means of publication from the traditional “one-to-many” media model to the ubiquitous “many-to-many” publication facilitated through social media platforms.

[1] Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.

[2] At [18].

[3] At [13].

[4] At [30] and [32].

[5] At [27].

[6] At [105].

[7] At [86].

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