Turn off comments on Facebook. High Court says you could be liable for damages caused by third party comments

On 8 September 2021, the High Court of Australia handed down a decision in Fairfax Media Publications Pty Ltd v Voller, Nationwide News Pty Limited v Voller, Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Fairfax v Voller) which confirms that Facebook posts can and will be considered publications for the purposes of defamation proceedings.

What’s more, the High Court’s decision found that newspaper publishers, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd were liable in defamation to Mr Dylan Voller (Voller) for defamatory comments posted by third parties on Facebook pages hosted by the newspaper publisher appellants.

This decision serves as a timely and important reminder for social media users to take care with content published on social media platforms.  This case sets a precedent for members of the public to succeed in claims for damages against Facebook page hosts, arising from defamatory publications made about them by other third party users on Facebook and other social media sites.

So, the lesson is not only to think before you post generally, but also for news publishers and social media page hosts to consider what material they enable and facilitate publication of on their public social media platforms.

Key takeaways

• Care must be taken by all social media users when posting publicly available material.

• Any publicly communicated material, including on Facebook and social media sites, which may defame or harm the reputation of the target/subject of the material may lead to defamation proceedings for damages.

• Newspaper and other publishers who host public Facebook and social media pages need to take care to monitor third-party posts to avoid liability for publishing defamatory matters.

• Liability for damages arising from defamation is not limited solely to the author of the defamatory material, but also extends to publishers who allow the defamatory material to be posted on their social media pages, thereby encouraging and facilitating publication of the material.

The ramifications of this are yet to be determined, but may potentially be wide-reaching and affect individuals and businesses alike.

The full text of the judgment is available here and a summary of the case is below.

Defamation Act 2005 (NSW) (Act)

There is no express definition of “publication” in the Act.  However, section 6 of the Act states that the Act does not “affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)”. 

Other provisions of the Act refer to the “publication of defamatory matter” (for example, sections 8 or 32 of the Act).  For the purposes of those provisions, “matter” is defined in section 4 of the Act to include:

• articles, reports, advertisements or other things communicated by means of a newspaper, magazine or other periodical;

• programs, reports, advertisements or other things communicated by means of a television, radio, the Internet or, relevantly, any other form of electronic communication.

Section 32 establishes the defence of innocent dissemination, which owes its origins to the common law.  The appellants in Fairfax v Voller referred to cases which developed the common law innocent dissemination defence in relation to submissions about what “publisher” means.

Primary proceedings and appeal

• Each of the appellant news publishers maintain a public Facebook page, the primary purpose of which involves posting hyperlinks to news stories with supporting headlines and images. Voller is an Aboriginal-Australian man who was detained in a youth detention centre in the Northern Territory, which lead to the ABC Four Corners episode entitled “Australia’s Shame” which aired in July 2016. Voller commenced three separate proceedings in the Supreme Court of New South Wales against each news publisher respectively “for defamation in respect of comments posted on the Facebook page of each respective publisher in response to articles published by those publishers” (Voller v Fairfax Media Publications Pty Ltd; Voller v Nationwide News Pty Ltd; Voller v Australian News Channel Pty Ltd [2018] NSWSC 608 at [1] per McCallum J).

• The primary judge accepted largely uncontested evidence that the administrators of each news publishers’ Facebook pages had the ability to “prevent, or block, the posting of comments by third parties through various means” (at 2, [7] per per Kiefel CJ, Jeane and Gleeson JJ). The determination by the Supreme Court of a separate question, “whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users” was answered in the affirmative by Rothman J (Voller v Nationwide News Pty Ltd; Same v Fairfax Media Publications Pty Ltd; Same v Australian News Channel Pty Ltd [2019] NSWSC 766).

On appeal to the Supreme Court New South Wales Court of Appeal, the appellant newspaper publishers argued the following grounds:

1. The primary judge erred in holding (at [110]) that the appellant was a publisher and, therefore, erred in answering the separate question ‘Yes’.
2. The primary judge erred (at [191]–[233]) by answering questions other than the separate question.
3. The primary judge erred in holding (at [228]) that the appellant was a first or primary publisher in relation to the general readership of the Facebook page it operates.
4. The primary judge erred in holding (at [29] and [213]) that it was possible to hide all comments on a public Facebook page.
5. (Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller (2020) 380 ALR 700, [5]).

Ultimately, the Court of Appeal dismissed the appeal and held that the acts of the news publishers in “facilitating, encouraging and thereby assisting the posting of the comments by third-party Facebook users rendered them publishers of those comments” (at 15, [55] per Kiefel CJ, Jeane and Gleeson JJ).

High Court judgment & consequences

Following their loss in the Court of Appeal, the appellant news publishers sought special leave and appealed to the High Court of Australia.  Special leave to appeal was granted to the appellant news publishers on 8 December 2020 ([2020] HCATrans 214).  In the High Court proceedings, the appellant news publishers contended that the common law required an element of intent to be proven in order for liability in defamation to be found.  The appellant news publishers did not rely on the statutory defence of innocent dissemination in section 32 of the Act, but said they innocently disseminated the defamatory publications in line with the common law defence.

In a majority decision of 5 to 2, the High Court dismissed the appellant news publisher’s appeals, thereby finding that “each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties” (at 33, [105] per Gageler and Gordon JJ).  In doing so, the High Court disagreed with the appellants’ argument that “a person must intend to communicate the material complained of as defamatory in order to be a publisher” (at 9, [35] per Gageler and Gordon JJ) and found the Court of Appeal’s decision to be correct.

By reason of the defamatory matters having been posted on Facebook pages created by the appellant news publishers, each of them were found to be publishers of the third-party Facebook comments.

If you are concerned about any potential liability for social media pages or services you provide, the commercial disputes team at Bartier Perry is experienced in defamation matters and available to advise you.

Authors: Gavin Stuart, Adam Cutri and David de Mestre