This was made clear in a recent decision of Justice Rothman of the New South Wales Supreme Court in Voller v Nationwide News Pty Ltd.

What happened?

The plaintiff, Dylan Voller, commenced defamation proceedings against three media companies, Fairfax, Australian News Channel and Nationwide News, claiming that they were each liable for third party comments posted on their respective Facebook pages.

Each of the media companies posted a link to news stories that related to the plaintiff, Dylan Voller, on their public Facebook pages. Third party Facebook users then commented on these posts, including some allegedly defamatory comments regarding the plaintiff. The plaintiff claimed that the media publishers were primary publishers of the third party comments for the purposes of defamation.

The preliminary question Justice Rothman had to consider was “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 that are alleged to be defamatory?”

Justice Rothman found that each of the media companies was a primary publisher of the third party content and could therefore be liable for any defamatory material. Relevant to this finding, Justice Rothman was satisfied that each of the media companies were aware that, given the nature of the material they were publishing, third party comments were likely to include defamatory material, and it was a “thoroughly predictable” result of posting the relevant article to the Facebook page.

The importance of editorial control

In the decision, the judge highlighted the distinction to be drawn between primary and secondary participation where a publisher has capacity to control, monitor, and delay the publication of third-party comments, before releasing them to the general public.

Justice Rothman distinguished public Facebook pages from private Facebook pages, and public websites or forums. The judge noted that for a public website or forum, there is no capacity currently for the administrators or owners to block or hide comments, except after publication. Accordingly, there is no capacity to vet comments, or prevent them from being published. Similarly, there is no function by which the creator of a private Facebook page can vet comments before they are published. This can only occur retrospectively, after publication has already occurred.

Conclusion

Justice Rothman acknowledged that it is necessary to strike a balance between society’s interest in freedom of speech and the free exchange of information and ideas, as against a person’s reputation in society. However in this case, he found that "each defendant was not merely a conduit of the comment", each was aware that the comments on their initial postings were likely to include defamatory material, and each had the capacity to vet and prevent publication of a third party comment on their initial post. The decision may be subject to an appeal.

Key takeaways

This decision has the potential to apply to other operators of public Facebook pages, not just media companies, and has the capacity to extend to other social media platforms. Operators should be mindful that where they can control what is published, before it is published, then they may be liable in defamation. Organisations should take precautions when publishing content on public Facebook pages, including

• considering the potential impact of their posts
• monitoring and vetting third party comments before publishing them.