Thinking | 9 September 2021

On the hook via Facebook: High Court upholds potential liability for the defamatory comments of strangers

By Hamish McNair

In a significant decision handed down this week,[1] the High Court has confirmed that parties who create a Facebook page are potentially liable for defamatory comments posted to that page by third parties as if they themselves were the publisher.

While this particular decision concerned Facebook, it has broader implications for all forms of social media and website engagement that facilitate comments from third parties. This is a landmark decision that requires individuals and businesses to rethink how they manage social media engagement with third parties.

Key facts

  • Dylan Voller came to public attention following a ‘Four Corners’ episode aired on the ABC in 2016 regarding the juvenile detention system in the Northern Territory.
  • Fairfax Media (The Sydney Morning Herald), Nationwide News (The Australian) and Australian News Channel (Sky News) are media organisations that publish newspapers and operate television stations.
  • Each of the media outlets maintained their own public-facing Facebook page on which they posted content relating to stories they had published. It is not alleged that any of the content posted by the media outlets themselves was defamatory of Mr Voller.
  • Third-party Facebook users posted comments on the Facebook pages of the media outlets which Mr Voller alleges are defamatory of him. At the relevant time, it was not possible to disable the ability of others to post comments on Facebook, however each of the comments were subsequently deleted by the media outlets.
  • Mr Voller sued the media outlets for defamation on the basis that they are liable as ‘publishers’ of the third-party comments. Although it is also open to Mr Voller to sue the individuals who posted the comments, he has taken aim at the media outlets to simplify his claim and raid their deeper pockets.
  • The substantive defamation proceedings have effectively been ‘put on hold’ pending the High Court’s determination on the discrete question of whether the media outlets are ‘publishers’ of the third-party comments.
  • Following yesterday’s decision, the substantive defamation proceedings will now continue in the NSW Supreme Court.

Previous position regarding publication of third party content

Within the law of defamation, it is an established principle that parties can be liable for the publication of defamatory comments made by others on physical walls or noticeboards controlled by them, if, after becoming aware of those defamatory comments, they fail to remove them. By way of illustration, a leading case in this area concerns a typewritten note posted to a noticeboard at a golf club in the UK in the 1930s.

In cases such as these, parties are liable for the ‘continued publication’ of defamatory comments after they became aware of them. The critical element is that the party is on notice that the comments have been made.

The crux of the Voller appeal was the application of the established principles of publication to the specific context of social media in the digital environment and in circumstances where the media outlets were not on notice of the comments.

Decision on appeal

In 2019, Justice Rothman of the Supreme Court of NSW found that the media outlets were liable as publishers. This decision was affirmed by the NSW Court of Appeal in 2020.

It was a key element of the decision of the Court of Appeal that the media outlets ‘encouraged and facilitated’ the comments. Justice Meagher and Acting Justice Simpson held that:

‘…a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees’.[2]

Their Honours considered the fact that the defamatory comments by Facebook users were ‘promptly removed’[3] from view once the media outlets became aware of them, was ‘immaterial’[4] to the argument that the media outlets could not be considered publishers in the relevant sense. The Court of Appeal held that by inviting comments on their respective Facebook pages, the media outlets had ‘participated in the publication of the third party comments from the outset’.[5]

Key reasons for the High Court decision

In a 5:2 decision (Justice Steward and Justice Edelman dissenting), the High Court dismissed the appeal of the media outlets, finding them to be ‘publishers’ of the third-party Facebook comments.

In a joint judgment, Justice Gaegler and Justice Gordon held the media outlets were akin to ‘…the operator of an "electronic bulletin board" [that] posts material with the intention that third parties will comment on the material posted’,[6] and considered this situation to be closely analogous to that of live television or broadcast radio.

Their Honours made a clear distinction between previous cases involving physical walls or bill boards where the defendant ‘played no role in the facilitation of publication prior to becoming aware of the defamatory matter’,[7] and that of the media outlets in this case. In this context, their Honours considered it material that the media outlets had intentionally facilitated and encouraged the third-party comments, with the effect that they became a publisher of each comment posted by a Facebook user at the moment they were posted.

Their Honours did not accept the media outlets’ position that they were ‘passive’ or ‘innocent disseminators’ of the defamatory comments, and considered this submission to be out of step with the commercial realities as to why these media outlets have and maintain the Facebook pages in the first place:

‘…[T]he appellants' attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences’.[8]

In a separate judgment, Chief Justice Kiefel, Justice Keane and Justice Gleeson held that:

‘…the Court of Appeal was correct to hold that the acts of the [media outlets] in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments’.[9]

In dissent, Justice Edelman did not accept the proposition that by creating a Facebook page, posting content and inviting comments, the media outlets had an intention or common purpose with the Facebook users to publish the comments.[10] Justice Steward adopted a similar position, finding an insufficient connection between the media outlets and the comments made by the Facebook users.[11]

What does this decision mean for businesses with a social media presence?

This is a landmark decision that requires individuals and businesses to rethink how they manage social media engagement with third parties.

The practical effect of the decision is to require a greater degree of oversight by social media managers before third party content is made publicly accessible. From a plaintiff perspective, the decision will make it easier for defamed individuals and small businesses to bring defamation claims arising from posts by anonymous ‘keyboard warriors’ who are extremely difficult to identify and hold to account.

The potential risk arising from third-party content on social media accounts is most easily managed by removing the ability for third party comments to be made, or limiting who can do so. Changes made in the period following the Facebook comments in this case now enable administrators of Facebook and Instagram accounts to turn off comments or posts. We expect that this is likely to be more frequently adopted by social media managers as a risk management approach.

An alternative approach is to proactively moderate third-party contributions prior to them being published. This is a feature available to Facebook administrators who can block posts with particular keywords, activate a profanity filter and/or require approval prior to posts being published publicly. Although this results in less transparency for users of the platform, the reduction of risk is arguably justified.

It is also important to observe that this case only focused on the specific question of whether the media outlets could be regarded as ‘publishers’ of the relevant material. The matter will now be remitted to the Supreme Court of NSW to consider the substance of the proceeding, including whether the media outlets are ultimately liable for defaming Mr Voller. There are potential defences available to the outlets, most notably the common law and statutory defences of innocent dissemination.

Alexandra Davies, Lawyer, assisted in the preparation of this update.


[1] Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27
[2] Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 at 111
[3] Ibid 724 at [108]
[4] Ibid 725 at [110]
[5] Ibid
[6] Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27 at [104]
[7] Ibid at [103]
[8] Ibid at [102]
[9] Ibid at [55]
[10] Ibid at [139]
[11] Ibid at [179]

Contact

Hamish McNair

Hamish is a commercial dispute resolution lawyer. His experience extends to applications for urgent relief, appellate matters and defence...

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