As previously reported, the decision of Justice Rothman of the Supreme Court of NSW in Voller v Nationwide News Pty Ltd, extended the reach of defamation law such that media outlets could be held liable as ‘publishers’ for defamatory Facebook comments made by third parties on the media outlets’ Facebook posts.

Given media outlets’ widespread use of Facebook and other social media platforms to share content and reach consumers, the decision left the law in a state of uncertainty and the media outlets appealed. The NSW Court of Appeal affirmed the decision and the media outlets appealed to the High Court. Recently, the High Court affirmed the Supreme Court and Court of Appeal decisions by a 5 to 2 majority. The High Court’s decision ushers in a new era for defamation law in Australia, as it meets technology and communication in the 21st century, and has far-reaching implications for organisations that use social media. The US network CNN recently became the first major international media company to disable its Facebook pages in Australia in response to the decision, after Facebook refused to disable the comment function.

Background

Proceedings were brought by Dylan Voller, a former detainee at Don Dale Youth Detention Centre in Darwin, whose experiences were portrayed on the ABC Program ‘Four Corners’ and prompted a Royal Commission into youth detention in the Northern Territory. Mr Voller sued three media outlets, which publish articles from websites such as the Sydney Morning Herald and The Australian and maintain public Facebook pages that also post news stories and similar content.

Mr Voller alleged that:

• third-party users made defamatory comments on the media outlets’ Facebook posts referring to news stories about Mr Voller
• the media outlets were liable as ‘publishers’ of those comments.

Whether the media outlets were ‘publishers’ of the comments, and therefore liable in defamation, was the key issue that the Court was required to consider.

The High Court’s decision

‘Publication’ is an essential element of defamation. That is, the defamatory material must be conveyed to a third-party. The seminal case in Australia is the 1928 case of Webb v Bloch, in which it was held that defamation requires an intention to assist in publication of the defamatory material. Any act of participation in the communication of a defamatory matter to a third-party is sufficient to make someone a publisher and liable in defamation.

In the High Court proceedings, the media outlets relied on a passage quoted in Webb v Bloch,

if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him

to argue that, for the media outlets to be ‘publishers’, they had to know of the relevant defamatory matters and intend to convey them. However, the High Court referred to other case law to confirm that the intention of the author of the defamatory matter is not relevant, rather the actionable wrong is the publication of the material itself. That is how defamation has captured persons who are not the author of the defamatory matter, such as traditional printers and publishers and, analogously to this case, owners of public noticeboards on which defamatory comments are published.
The majority judgment, of Kiefel CJ, Keane and Gordon JJ, held that, by creating a public Facebook page and posting content on that page, the media outlets were 'facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users' and, therefore, they were publishers of the allegedly defamatory comments

Two of the judges, Edelman J and Steward J, dissented and would have allowed the appeals in part. Edelman J held that publication would only be established in respect of third-party Facebook comments that had more than a 'remote or tenuous' connection to the media outlets’ posts. Steward J held that publication would only be established in respect of those third-party comments that had been 'procured, provoked or conduced' by the media outlets’ posts.

Implications of the decision

Social media is now an important marketing and revenue-generating tool for businesses, including media outlets, and significantly extends consumer reach. Engagement, including likes and comments, can further extend that reach. However, the High Court’s decision highlights the need for not just Facebook users, but all social media users, to be mindful of the risk of defamation liability posed by third-party users. At the time that the allegedly defamatory comments about Mr Voller were made, there was no ability for page owners to restrict comments on public posts (though they could be deleted after the fact). Now, in response to pressure from media outlets, page-owners have the ability to restrict comments or only allow comments by certain users. These moderation features, as well as removing comments upon complaint, will likely be key to avoiding liability. On some platforms, it may also be possible to review and vet comments prior to their publication, which will also be valuable.

It is also important to note that the defence of innocent dissemination, whereby a publisher is not liable if they can prove that, amongst other things, they were unaware of the content and were unable to exercise editorial control over it, is still available despite the decision. In Voller, the High Court clarified that the defence operates once the tort of defamation (including the publication element) has been established. If the defendant can prove innocent dissemination, then they will not be liable. Voller’s case will now go back to the Supreme Court for hearing as to whether the comments themselves were defamatory. No doubt, the media outlets will argue the defence of innocent dissemination.