In its recent decision in Voller1 the Supreme Court of New South Wales has established that media organisations may be liable as publishers of defamatory comments made by third parties on their public Facebook pages.2
This is the first time an Australian superior court has considered the question of who is responsible for third party comments on public Facebook pages. It means that plaintiffs in defamation proceedings will now have the choice of suing the owners or administrators of those pages in addition to the makers of Facebook comments and possibly Facebook itself.3
The question before the Court
Dylan Voller commenced defamation proceedings against several media organisations over comments that were made in response to news articles posted on their respective Facebook pages. Mr Voller and the media organisations agreed that, before proceeding to hearing, the Court should answer a preliminary question as to whether the media defendants should be considered to be “publishers” (being the necessary first step to prove in a defamation claim) of Facebook comments made by third parties.
It was not necessary to determine whether the media defendants were in fact liable for publishing the allegedly defamatory comments, which would turn on the availability of positive defences such as honest opinion or (in the case of secondary/subordinate publishers) innocent dissemination.
The Court held that the media defendants were publishers of the third party Facebook comments. Further, the Court determined that the media defendants would be liable as primary publishers (as distinct from secondary publishers).4
Evidence about the operation of Facebook
Central to the Court’s decision was its findings on the expert evidence in the case regarding the operation of Facebook generally and evidence from each of the media defendants as to how their specific public Facebook pages were operated. In particular, the Court found that:
a) an administrator of a private ‘individual’ page (or “profile”) cannot block all comments on their page;
b) by contrast, an administrator of a public page may ‘block’ or ‘hide’ the comments on articles or posts;
c) ‘blocking’ a comment permanently removes it so that it cannot be seen by anybody. This is achieved by subscribing to tools offered by Facebook itself and which allow administrators to block all comments that contain specific words (for example, a profanity filter);
d) ‘hiding’ a comment means that the comment can be seen by the commentator, ‘friends’ of the commentator, and the administrator; but is not visible on the article/post published by the public page operator (unless ‘unhidden’ by an administrator). The fact a comment has been ‘hidden’ in this manner does not prevent the comment from being ‘shared’ or ‘liked’ in the usual manner by the commentator or their ‘friends’;
e) it is possible to ‘hide’ all comments by using a filter that blocks all comments containing commonly used words such as “the”, “it”, “I” and “have”;
f) there are several mechanisms through which Facebook notifies the administrator of new comments; and
g) the media defendants encouraged comments on their Facebook pages for commercial and marketing purposes. Further, almost all of them undertook no assessment as to the likelihood of defamatory comments being posted on their news stories.
The media defendants argued that it would be physically impossible to monitor every comment and that it would require a disproportionate amount of effort in comparison to the number of comments that need to be blocked, deleted or hidden. Mr Voller’s expert conceded that “it was impossible for a publisher of a public Facebook page to prevent in advance the publication of any comment fully, unless it operated in a way that did not allow any comments.” Given that a public Facebook page always allows comments, the best that a publisher could do was to ensure that every third party comment was hidden until reviewed and approved.
Whilst the Court appeared to accept that the media defendants could not filter out defamatory comments prior to them being made, it held that they had the capacity to “hide” them by using a generic filter (as described above) and assessing each comment before “un-hiding” and publishing them. The fact that the majority of the media defendants did not presently allocate sufficient resources to undertake such a task was no reason not to sheet home liability for publication as a primary publisher, according to the Court.
The Court’s reasons
In determining that the media defendants were primary publishers of third party comments, the Court considered Australian authorities as well as decisions in overseas jurisdictions dealing with online and social media publications.
Relying on fundamental principles of publication, as enunciated in Gutnick,5 the Court found that:
“It is not the compiler of a comment that publishes as a result of her or his authorship. It is the publisher of a comment in a comprehensible form or legible form that publishes the comment.“
“Thus, if an author of a comment, which is defamatory, were to post that comment on a public Facebook page, publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page.”6
The Court considered cases including where liability as a publisher had been established for online search results generated by a search engine7 and administrators of a website forum.8 Building on the principles in Oriental Press in particular the Court in Voller held that the criteria to determine whether a publisher is a “primary publisher” are that, prior to publication, the publisher:knows or can easily acquire knowledge of the content of the article being published (“knowledge criterion”); and
i) has editorial control involving the ability and opportunity to prevent publication of such content (“control criterion”).
ii) The Court found that the media defendants satisfied both the “knowledge criterion” (since the media defendants were notified of all new comments through Facebook’s notification mechanisms) and the “control criterion” (because the media defendants were able to “hide” or “block” comments prior to them being published by using a generic word filter).
What does this mean if you operate a public Facebook page?
The Voller decision will be of interest to media organisations, social media platforms, and any entity that operates a public Facebook page. Operators wishing to minimise legal risk for defamation will now need to monitor all comments before allowing them to be published on their public Facebook page. In addition to allocating dedicated resources to this task, operators may wish to implement a system to assess the risk that their posts will attract defamatory comments.
The Voller decision will also almost certainly influence the New South Wales review of the Model Defamation Provisions.9 As part of its review, the Defamation Working Party will be assessing whether the innocent dissemination defence requires amendment to better reflect the operation of social media platforms as publishers, and whether the existing protections for these and other digital publishers are sufficient. With Google having been found to be a publisher based on its processes in generating search results,10 the judicial consideration of Facebook’s processes in facilitating comments may be relevant in considering these matters.
In addition, the Australian Competition and Consumer Commission (ACCC) is conducting an inquiry into digital platforms.11 The inquiry will consider the effect that social media platforms have on competition in media, as well as the impact of such platforms on the supply of news and journalistic content and the implications of this for media organisations.
Although Facebook has not released a statement in response to the Voller judgment, Richard Allan – Facebook’s London-based vice-president of policy solutions – has stated that:
“As a general matter we think individuals should be held responsible for the content they publish, so if an individual posts defamatory content they should be held accountable“
“the primary responsibility should lie with the person who wrote and published the comment”.12
Whether Facebook’s view will have force in the development of the law in Australia is yet to be seen.
1. Voller v Nationwide Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766 (“Voller”).
2. Voller at . As to what a “public Facebook page” is, see Voller at , , , , , and .
3. For a more comprehensive background to the Voller case, see our article ‘Are media companies responsible for defamatory Facebook comments made by third parties? NSWSC to decide in “novel” case’ published on 11 April 2019.
4. This distinction is discussed in our 11 April 2019 article.
5. Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575;  HCA 56.
6. Voller at –.
7. Google Inc v Duffy (2017) 129 SASR 304;  SASCFC 130. See also our discussion of this case in our 11 April 2019 article.
8. Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366;  HKCFA 47 (“Oriental Press”).
9. The Discussion Paper and submissions are available on the NSW Department of Justice’s website here.
10. Above n 7. See also the High Court’s comments in Trkulja v Google LLC  HCA 25.
11. The preliminary report can be found on the website of the ACCC here.
12. John McDuling and Fergus Hunter, ‘“Individuals should be accountable”: Facebook backs media over comment controversy’, Sydney Morning Herald (online), 27 June 2019 <https://www.smh.com.au/business/companies/individuals-should-be-accountable-facebook-backs-media-over-comment-controversy-20190626-p521ll.html>.
Liability limited by a scheme approved under Professional Standards Legislation.
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