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This article comments on the decision of the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Ltd v Voller; Australian News Channel Pty Ltd v Voller.¹

On 8 September 2021, the High Court found by a 5:2 majority that media companies may be liable for the defamatory comments of third parties on social media platforms.

Key points

• The appellant media companies were held to be publishers of comments posted to their public Facebook pages by third party users.
• Liability for defamation and any damages is not limited to the author of the defamatory comments but extends to publishers who allow the defamatory content to be posted on their social media platforms and thereby encourage or facilitate the defamatory publication.
• Entities who provide platforms enabling publication of defamatory comments can be held as publishers, with or without notice.
• The decision may have widespread impacts for any business operating any social media page or website enabling the publication of comments posted by third party users.

Background

The treatment of Dylan Voller whilst in custody at the Northern Territory’s detention centre resulted in the 2016 Royal Commission into youth detention. The defamation case originated as a defamation claim brought by Mr Voller in the NSW Supreme Court over comments made by Facebook users on news stories posted to Facebook by the defendant media companies.

The appeal centred on whether the defendant media companies could be said to have “published” the material of those third-party users by providing a facility for comment and therefore whether they may be liable in defamation for those comments.

Decision

A High Court majority, comprising Kiefel CJ, Keane and Gleeson JJ and (in a separate joint judgement) Gageler and Gordon JJ, dismissed the appeal by the defendant media companies, with costs. In doing so, they rejected the argument that media companies are not publishers of comments made by third parties on Facebook pages that they controlled.

Importantly, it was held that the publication of defamatory comments does not need to be accompanied by any element of intention to communicate those comments by a publisher, or indeed knowledge by the moderators of the page that those comments have been posted.²

It is still yet to be seen whether the comments published were indeed defamatory of Mr Voller, but the decision of this appeal means many entities may need to reconsider their social media activities and policies, and more heavily moderate their online pages for defamatory content including by disabling any commenting mechanisms, or else run the risk of being sued.

Publication – Adapted for the modern times

Publication of defamatory material is an essential element of Australian defamation law. Whilst the Defamation Act 2005 (Act) contains no express definition of “publication” it does refer to the publication of defamatory “matter” which itself is defined to include articles, reports, advertisements, pictures, oral utterance and “any other form of electronic communication” and “any other thing by means of which something may be communicated to a person”.³

Publication has long been considered as the bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension.⁴ In their judgment, Kiefel CJ, Keane and Gleeson JJ confirmed the decision in Trkulja v Google LLC [2018] HCA 25 and Webb v Bloch (1928) 41 CLR 31 that the meaning of ‘publication’ is any act of voluntary participation in the communication of defamatory material to a third party will render the communicator a ‘publisher’.⁵

The emergence of new internet technologies and social media platforms has tested the traditional conceptions of what it means to “publish” material, and who a “publisher” may be.

Facilitation – the critical variable?

The plurality opinion of Kiefel CJ, Keane and Gleeson JJ noted the media company appellants were publishers of the content in “facilitating, encouraging and thereby assisting the posting of comments by third-party Facebook users”.⁶

In determining whether the appellants were actively involved in the publishing of the material, their Honours applied the rule in Webb v Bloch strictly, stating: “Webb v Bloch is to be understood to say that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication”.⁷

Gageler and Gordon JJ also found in favour of the primary judge on this point, noting that the media companies used Facebook as a medium to increase readership and to generate advertising revenue.⁸ The element of “participation” in publication will be satisfied if it is active and voluntary, especially as the media outlets encouraged comments from third parties for their own commercial benefit.⁹

The defence of ‘innocent dissemination’

The High Court also considered the common law defence of innocent dissemination (rather than the statutory defence in section 32 of the Act) and its application to the publication rule. Under this defence, the publisher of defamatory material is not liable in defamation if they were not aware of the defamatory content and had no capacity to exercise editorial control over the material at the time it was distributed or disseminated.

Gageler and Gordon JJ confirmed that the defence is just that – that is, “a defence to a cause of action in defamation rather than as a denial of the element of publication.”¹⁰

Is removing comments on social media pages altogether the answer?

The decision may have broad ramifications for all people and organisations that maintain their own websites and social media pages which permit the publication of third-party comments or material.

To mitigate the risk of liability for defamatory publications, entities or operators of social media pages or interactive platforms should consider enacting stricter controls and oversight of their social media pages and platforms and refreshing their social media protocols, or disabling the mechanism permitting the publication of third-party comments altogether.

Facebook now permits publishers to deactivate comments on certain posts.

Upcoming legal reform

This decision of the High Court of Australia comes at a time when the NSW Government has entered the second stage of its review of the current legislative framework governing defamation law which commenced in April 2021. Gageler and Gordon JJ noted that this legislative review provides a compelling reason for maintaining the traditional common law approach to defamation.¹¹

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¹ [2021] HCA 27 (‘Voller’).
² Ibid 7 [27].
³ s4 Defamation Act 2005 (NSW)
⁴ Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 600 [26].
⁵ Voller 8 [30]
⁶ Ibid 15 [55].
⁷ Ibid 9 [32].
⁸ Ibid 32 [102].
⁹ Ibid 33 [105].
¹⁰ Ibid 23 [76]
¹¹ Ibid 28 [89].