The New South Wales Supreme Court is currently considering whether media companies who operate Facebook pages are liable for defamatory comments left on their posts. In doing so, the Court will look at competing authorities from interstate and overseas in order to decide whether such comments are “published” by the companies merely by virtue of the fact that the content has appeared on their social media feeds.
The latest case involves Dylan Voller who has brought defamation proceedings against Fairfax Media, Australian News Channel (Sky News) and Nationwide News for comments that were left in response to news stories posted on their respective Facebook pages in 2016 and 2017. Voller is known for being a detainee at Don Dale Juvenile Detention Centre prior to the Royal Commission into the Detention and Protection of Children in the Northern Territory.
Voller does not claim that the articles themselves were defamatory, but that the comments left by members of the public carried defamatory, false imputations, including that:
- he is a rapist;
- he attacked a Salvation Army officer who visited him in detention; and
- this attack left the man blind in one eye.
Voller alleges that the media defendants should be liable as either primary or secondary publishers of the comments if “they knew or should have known that there was a significant risk of defamatory observations about the plaintiff being placed by third parties on the relevant Facebook pages in the guise of comments on the article.”1 Specifically, he argues that the defendants should have been aware of this risk as they purposefully chose to post on Facebook content that would spark discussion, especially as Voller is in a vulnerable position in the public eye.
The media defendants deny that they are liable for the comments made by others and assert that Voller has misconstrued the law by using an “ought to have known” test. By extension, the defendants argue that Voller has misconstrued Duffy v Google2 and that liability could only occur if the publishers knew about the defamatory comments. The defendants rely on the New Zealand case of Murray v Wishart3 in support of this argument. In that case, the Court of Appeal was asked to decide the appropriate test as to whether a host of a Facebook page could be liable as a publisher for the comments on the page. It was held on appeal that the correct approach was an “actual knowledge” test not an “ought to have known” test. The court held that an “ought to have known” test was incorrect for a number of reasons, including that:
- the “ought to have known” test would put the host of a Facebook page in a difficult position as they would be liable for defamatory comments as soon as they were posted, regardless of whether they eventually removed them;
- the “ought to have known” test would mean that a host would be liable as soon as they could reasonably anticipate the posting of a defamatory statement, which is akin to the law of negligence and inconsistent with defamation being an intentional tort;
- the “ought to have known” test was unclear in its application and Facebook users needed clear boundaries in order to avoid risk.
The media defendants in Voller also claim that it would have been impossible for them to monitor every comment left on their posts due to the sheer volume. The issue to be decided is whether Voller has made out the necessary element of publication on the part of the media companies.
3. Who is a publisher?
Despite modern changes in technology and communication, Australian courts have continued to apply the same common law test to prove publication of defamatory material. This test stipulates that a plaintiff must show that the defendant participated in the publication of a work.4 Case law also provides a distinction between primary and secondary publishers. A primary publisher is anyone who has prior knowledge of, or effective control over a publication’s content.5 Examples include authors, editors and publishing companies. A secondary publisher is anyone who participates in publication but is not the author, primary distributor and has no editorial control over the material. Examples often include people or platforms that disseminate the content, such as search engines and website forum hosts.6 An entity that plays no more than a passive role, such as an internet service provider, will not generally be found to be a publisher on either basis.7
There is also a distinction between a primary and secondary publisher’s requisite knowledge of the defamatory material. A primary publisher will be liable for defamatory comments regardless of whether they knew or ought to have known about the defamatory imputations within the work,8 whereas a secondary publisher is not liable if they can prove that they did not have knowledge of the defamatory comments and they could not reasonably have known about them.9
The decision of Duffy was one of the first significant cases to consider whether an intermediary – namely, Google – could be liable as a publisher of the content of third parties.
Two articles that were critical of Dr Duffy had been published on a website called the Ripoff Report, and the publications had been republished by various other websites. Dr Duffy complained that if a user typed her name into Google’s search bar, the search results would return hyperlinks to the defamatory publications, as well as “snippets” of the articles. Additionally, Google’s autocomplete function suggested search phrases associated with Dr Duffy which were said to be defamatory. Dr Duffy asked Google to remove the material, but her request was declined.
Dr Duffy subsequently commenced defamation proceedings. Google pleaded the defence of innocent dissemination on the basis that it did not and could not reasonably have any way of knowing that the defamatory articles were being published as a result of its autocomplete function and search results algorithms. It further claimed that any publication of the defamatory content had not been authorised by Google since the algorithms automatically produced the results.
The Court rejected Google’s arguments; finding that once a reasonable time had passed after Google became aware that it was publishing the defamatory content (i.e. when Dr Duffy notified Google) it could no longer rely on the defence that it had “innocently” disseminated the content. In arriving at that conclusion, the Court distinguished much of the recent overseas case law and resolved that Google had not acted as a “mere conduit” in the way that, for example, an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network is. Rather, Google had actively disseminated the defamatory content because the communication of information is what Google’s search engine and its algorithms were designed to do.
Although this case concerned a search engine, the principles to come out of Duffy v Google may equally be applicable to social media platforms, namely:
- however, if the platform’s purpose and design is to communicate information to the public, it will not be considered a mere conduit;
- a platform will be liable as a secondary publisher if it actually knew that it had published the material (including if it is given notice of the material’s defamatory nature); or if it could, with the exercise of reasonable diligence, have known of its inclusion in its published material;
- once a reasonable time has passed from after the platform is notified or becomes aware of the dissemination of the defamatory material, it will no longer be able to rely on the defence of innocent dissemination and may be liable as a publisher.
Although no Australian court has found a social media platform to be a publisher in defamation, the case law to date suggests that the platform’s liability for defamatory content posted by its users will be largely dependent on the facts and evidence.
3.2 Johnston v Aldridge
The recent case of Johnston v Aldridge10 in the District Court of South Australia found that the author of a Facebook post can be held liable for the comments left on the post. The District Court held that the defendant, Mark Aldridge, had knowledge of defamatory comments being left on two of his posts concerning the plaintiff (Ben Johnston) and was therefore liable as a secondary publisher of their defamatory content.
In this case, the defendant and the plaintiff were green grocers who were engaged in an ongoing planning dispute regarding their respective stores. The defendant published defamatory posts about the plaintiff, carrying imputations that the plaintiff was “selfish” and “greedy”. These posts attracted attention from members of the community and the comments left echoed the defamatory imputations.
The Court held that by allowing comments to be left on his posts, the defendant facilitated bilateral publication of the comments. Proof was not required that “he could control the authors or that he was complicit in some common purpose with the author to publish their work.”11It was enough that these comments were responsive to the defamatory post. The Court also found that it was very likely Mr Aldridge had knowledge that the comments existed as he had asked his wife to monitor them.
The defendant argued that there were thousands of comments on these posts and that they “took several hours to scroll through”.12 In response, the Court held that “volume cannot create its own shield” and that there was “nothing physically preventing the defendant…from discovering the contemptuous and disparaging nature of at least some of the comments” and that this “was not an unrealistic expectation.”13
Although Johnston v Aldridge is not binding authority, it suggests that if a person publishes a controversial post and it can reasonably be expected that users will post inappropriate comments, the publisher of the post will have a responsibility to actively monitor and delete the comments. In other words, a publisher of a Facebook post does not need to have actual knowledge of the existence of defamatory comments; constructive knowledge is sufficient.
4. Potential implications of the Voller case
Mr Voller’s case is ‘novel’ in that it could have far-reaching implications for media organisations using Facebook as a platform. If the Supreme Court finds in favour of the plaintiff, media companies will need to monitor and remove any defamatory comments on their posts.
1. Voller v Fairfax Media Publications Pty Ltd; Voller v Nationwide News Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 608 at .
2. (2015) 125 SASR 437 (“Duffy”).
3.  NZCA 461.
4. Dow Jones v Gutnick (2002) 210 CLR 575 at 600; Duffy.
5. Tamiz v Google Inc  EWCA Civ 68 at ;  1 WLR 2151.
7. Bunt v Tilley  EWHC QB 407 at ;  1 WLR 1243.
8. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 586–588 cited in Duffy.
10.  SADC 68.
11. Johnston v Aldridge  SADC 68 at .
12. Ibid at .
13. Ibid at .
Liability limited by a scheme approved under Professional Standards Legislation.
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