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The High Court has dismissed an appeal from a decision which found that Facebook page administrators were “publishers” of defamatory comments made by third-parties on their Facebook pages, affirming the position that administrators of Facebook pages can be publishers of statements made by third-parties on their pages (Voller Decision).[1]
This means a person can be liable for defamation regardless of intent to publish or even knowledge of the publication, if they "participated" in the communication of the defamatory matter by facilitating and encouraging it.
Background
Dylan Voller brought proceedings against media outlets for comments made by third-parties on content published on their Facebook pages regarding Mr Voller’s mistreatment in a youth detention facility. The comments included accusations Mr Voller had committed violent crimes. A preliminary question was raised at the commencement of the proceedings as to whether the media outlets were in fact “publishers” of the third-party comments for the purposes of defamation.
The Supreme Court of NSW found, and the Court of Appeal and now the High Court has affirmed, that they are, meaning Mr Voller can now continue his claim against the media outlets in the Supreme Court, where it will be determined whether or not the third-party comments are in fact defamatory and if so whether any defences are available.
High Court decision
The High Court majority rejected the arguments put forward by the media outlets that they did not make the defamatory comments available to the public, did not participate in their publication, were not in any relevant sense instrumental in their publication and did not have the requisite intention for publication.
Rather, the majority found that all degrees of intentional participation in the communication of defamatory matter to a third-party constitutes publication for the purposes of the law of defamation. They found the intentional participation in that process was sufficiently constituted by the media outlets’ contracting with Facebook for the creation and ongoing provision of their public Facebook page and posting content on their pages which automatically gave Facebook users the option to engage with the content.
The High Court noted the primary judge had found that the "primary purpose" of the operation of each media outlet’s public Facebook page was "to optimise readership of the newspaper or broadcast and to optimise advertising revenue" and that the existence and number of comments from third-party users is an important aspect of the popularity of public Facebook pages. The High Court went on to find that media outlets’ “attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality…to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”
Consequences
The High Court found the creation and administration of a public page, posting of content on that page and encouraging and facilitating publication of comments from third-parties is sufficient to be a publisher of third-party comments.
While the ruling clearly has the potential to affect both organisations and individuals who host public pages or social accounts that seek publicity or commercial gain from their posts, it is less clear whether it could apply to individuals’ personal social media accounts.
It formed part of the majority’s reasons that the comments were made on the public Facebook pages of large media organisations who had a commercial incentive to generate as many comments as possible. It therefore remains to be seen whether the Court would find that comments made on an individual’s private Facebook page with the intention of facilitating interaction with their network would constitute “participation” in the requisite sense.
Such a finding is certainly open on the Court’s reasons, but does not necessarily follow. The High Court did not consider the issue specifically but Rothman J, the primary judge, made clear that, in his view, it did not (at least not to the extent that individuals could be considered as ‘primary publishers’).
This is in contrast to the view expressed by many commentators and media organisations who have railed against the decision as dangerously curtailing free speech for media and individuals alike. It will likely be a moot point soon in any event, as the Voller Decision comes as “Stage 2” of reforms to defamation laws are pending, following commencement of Stage 1 of the reforms in NSW, Victoria, Queensland, South Australia and the ACT on 1 July 2021.
Reforms to defamation law
The Stage 2 forms are focused on “liability of digital platforms for defamatory content published online” and the NSW Attorney General has singled out the decision in Voller to be “addressed” by the reforms. How far the reforms go is still very much open for debate.
Rather than overturn the Voller Decision in its entirety, the legislature may consider aligning with the dissenting ruling of Steward J (with whom Edelman J agreed), who found that the media outlets should be held responsible if they have “procured, provoked or conduced” any third-party content.
His Honour found that “there must be something about the content, nature or circumstances of a Facebook post that justifies a conclusion that it has procured, provoked or conduced a defamatory third-party comment” and gave as an example a person who herself posted defamatory comments on her own Facebook page being found to be the publisher of others’ comments on that post.
Clickbait, misinformation or sensationalized content aimed at generating strong reactions without regard for the reputation of those reported on should continue to have consequences for media organisations and influencers generating profit from this, and Steward J’s proposed test may achieve this, while also allowing responsible, professional journalism to thrive in the digital age.
A discussion paper on the Stage 2 reforms was publicly released for comment between 7 April 2021 to 19 May 2021. It is unknown when the Stage 2 reforms will be implemented.
In the meantime, anyone who hosts a public Facebook or other social media account for business or other promotional purposes should be very wary of third-party comments on their pages. Individuals with personal social media accounts could conceivably (but not necessarily) also be caught by the decision. Facebook now allows page administrators to turn off comments on certain posts, which is an option risk-averse users may wish to employ, if they do not have the resources to moderate all comments pre-publication.
Read other items in the Australian Insurance Brief - October 2021
Footnote
[1] See Nationwide News Pty Limited v Voller [2021] HCA 27; Fairfax Media Publications Pty Ltd v Dylan Voller [2021] HCA 27; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27.
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