Facebook and Defamation With KP Carmody

The High Court decision of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller is a case of narrow issue but has far-reaching concequences.

The factual context of the case is both fascinating yet beguiling from a ‘future ramification’ perspective. The appellants were three major news companies. They each maintained a Facebook account on which they published news stories. Readers could leave ‘comments’ or ‘likes’ on the posts.

One such news story concerned Dylan Voller – a young Aboriginal man whose poor treatment in youth detention sparked a 2016 royal commission. Mr Voller commenced defamation action against the news outlets for comments made by members of the public on the news outlets’ Facebook pages. He alleged each news outlet was a ‘publisher’ of the third-party comments under defamation law.

An essential element of Australian defamation law is that material must be ‘published’ for it to be defamatory. Publication is the process by which a defamatory statement or imputation is conveyed. Defamatory material can be published even if there is no intent to defame.

Crucially for the Voller case, defamatory material can also be published by failing to act.

The High Court majority held the appellants were ‘publishers’ of comments posted by third parties on their public Facebook pages. By hosting a public Facebook page and posting material which could be commented upon, the news outlets were found to have facilitated and encouraged communication.

The crux of the news outlets’ argument was that to be a publisher of the comments, they needed to have known of the defamatory matter and intended to convey it. But in two separate judgments, the majority rejected this argument. Under Australian law, a defendant may be a ‘publisher’ even if they do not intend to damage or injure someone’s reputation and a publisher can defame even if they were unaware of the defamatory matter.

Because the news outlets intentionally published a Facebook page with stories and links that invited third- party comments, they were considered to have facilitated, encouraged and assisted the publication of those comments. This was enough to attribute ‘publisher’ status to them.

The decision has sent shockwaves throughout Australian media. The upshot is that a media outlet is legally responsible as a ‘publisher’ for defamatory comments made by readers on its Facebook page. This means, at least in theory, that anyone building a social media page can be sued over disparaging comments posted by random group members – even “trolls” regardless of whether the host is aware of the comment.

Any business that hosts a website or social media page should review their social media engagement process and take steps to either prevent or moderate comments to reduce the risk of defamation liability.

The contents of this article are general in nature. For advice specific to your circumstances, please contact your legal practitioner.

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