Insights

The expanding net of publication: Social media and third-party comment: Fairfax & Others v Voller

Commercial Disputes
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Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel v Dylan Voller [2021] HCA 27

Summary

In a majority decision that will create consternation for media outlets and businesses operating social media pages, the High Court has dismissed appeals from the decision of the New South Wales Court of Appeal (see our previous insight here) and confirmed that the media defendants were publishers of alleged defamatory third-party comments made on their public Facebook pages.

In affirming the decision of the NSW Court of Appeal, the majority confirmed that subject to any applicable defences, defamation operates as a tort of strict liability and intention to publish the specific matter in question is therefore not required in order to make someone liable as a publisher of defamatory content.

Background

Dylan Voller, a former detainee in the Northern Territory's Don Dale Youth Detention Centre, brought proceedings against the three appellant media companies for alleged defamatory comments posted on Facebook by readers in response to articles placed on the media defendants' respective Facebook pages.

At first instance, Justice Rothman determined that the media organisations were publishers of the material posted by third parties as they "maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally". That decision was affirmed on appeal by the Court of Appeal.

The decision on appeal

The majority of the High Court (comprising two separate joint judgments of Kiefel CJ, Keane and Gleeson JJ, and Gageler and Gordon JJ) dismissed the appeals.

In dismissing the appeals, the plurality confirmed a long line of authority to the effect that the element of publication does not depend upon knowledge of defamatory matter or an intention to communicate it. Gageler and Gordon JJ added that the word "intentionally" is to be understood as meaning "an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter" and, beyond that, any further requirement of knowledge or intention is irrelevant.

Rather, the liability of a person as a publisher depends on mere communication of the defamatory matter to a third person, and any voluntary act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.

The majority found that the media outlets had intentionally facilitated and encouraged third-party comments on their Facebook pages and therefore became publishers of each comment posted by a Facebook user at the moment they were posted. This was sufficiently constituted by each media outlet contracting with Facebook to provide their public page, posting on that page, and thereby giving third-party users the ability to comment on that content. Therefore, the online environment was distinguished from previous cases that involved billboards or physical walls that had been defaced by defamatory graffiti, in which case the defendant was found not to have played a role in facilitating the publication.

The majority also clarified the relevance of the defence of innocent dissemination in the context of publication, finding that a successful defence of innocent dissemination has the effect of excusing from liability a defendant who would otherwise have been liable as a publisher (it does not mean that publication is taken to have not occurred).

Key takeaways for businesses

The High Court's decision confirms that those who maintain Facebook pages or other online forums through which they allow and encourage interaction with the public are, for the purposes of defamation law, prima facie liable for any defamatory content posted to those pages by third parties.

Importantly however, the court in the Voller litigation has yet to fully consider or determine the applicability of the defence of innocent dissemination, which provides a defence to publishers of third-party material who did not have the capacity to exercise editorial control over the material before it was published and who did not know, or reasonably ought to have known, that the material was defamatory.

While we await the Supreme Court's decision on that issue, businesses that provide platforms or forums for third-party comment, including via social media, should carefully consider the need to mitigate their risk of liability by proactively moderating content or disabling the "comment" function altogether. A failure to do so may increase the risk of litigation and the prospect of such businesses being found to have facilitated, encouraged or procured the posting of comments by third-party users so as to render them liable as publishers of those comments.

Further, it is essential that any operators of Facebook pages or other customer engagement platforms react promptly to complaints or concerns notices received from parties claiming to have been defamed by third-party content on their pages. In these instances, time is of the essence and may be the difference between a successful defence of innocent dissemination and a damaging and expensive defamation judgment.

Should you require further advice about such matters, please contact our Defamation and Brand Protection team.

Authors: Scott Traeger, Special Counsel and Natale Ilardo, Senior Associate.

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