In 2019, the NSW Supreme Court’s judgment in Voller shook the defamation landscape in New South Wales by determining that media organisations can be liable as publishers for defamatory comments made by third parties on their public Facebook pages.
This week a majority of the High Court of Australia affirmed this finding. As a result, the notion that administrators of public Facebook pages can be liable for third party comments is now embedded in defamation law in Australia, unless and until the various legislatures of the States and Territories take up the invitation to change the law.
In 2016 and 2017 several mainstream media organisations published articles about Dylan Voller to their Facebook pages. Mr Voller alleged that comments posted to the media organisations’ articles on Facebook were defamatory of him and he commenced proceedings against the media organisations in the Supreme Court of NSW.
Before proceeding to trial, the Supreme Court was asked to determine a separate question – namely, are the media organisations “publishers” of the comments for the purposes of defamation? That question was answered in the affirmative by the Supreme Court and upheld by the Court of Appeal.
For a more thorough background to the Voller judgment, see our previous article “No comment? Potential liability for third party Facebook comments”.
The High Court proceedings
The media organisations’ main argument before the High Court was that they were not “publishers” because they did not have the requisite intention for publication – specifically, they did not intend to communicate the allegedly defamatory posts, and they had no “knowing involvement” of the relevant content. They argued that the answer to the question of liability should be determined by whether they were “instrumental and participated in the publication” of the third-party comments. The media organisations relied on various overseas authorities to support their position, including the New Zealand decision of Murray v Wishart.
The majority of the High Court in Voller (Kiefel CJ, Keane and Gleeson JJ, with Gageler and Gordon JJ agreeing) found that intention is not relevant to whether an act of publication has occurred. Rather, liability as a publisher for defamatory content does not depend on the fault of the publisher but only on the mere communication of the defamatory matter to a third person.
Consistently with the reasoning in decisions such as Oriental Press v Fevaworks, their Honours agreed with the lower courts that because the media organisations had actively facilitated, encouraged and therefore assisted the posting of comments by third-party Facebook users, they were liable as publishers of the comments. Justices Gageler and Gordon further observed that:
“[The media organisations’] 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, [they] bear the legal consequences.”
What does this mean for you if you operate a public Facebook page?
The effect of the Voller judgments is that any person or organisation that operates a public Facebook could potentially be liable for comments made by other people. However, each case still turns on its own facts, including whether the other elements of defamation are satisfied and whether any defences apply.
Although the Voller judgments only concern comments posted to public Facebook pages, the High Court’s decision provides greater clarity concerning the principles of publication which apply equally to content posted to other kinds of webpages, including outside of social media platforms.
Since the first Voller judgment, Facebook has updated its platform to enable administrators to disable the commenting function. Administrators of public webpages who encourage and facilitate comments may wish to consider implementing systems to monitor content posted to their pages and assess any potentially defamatory comments prior to their publication, if they have not done so already.