03/06/2020

The NSW Court of Appeal has upheld the decision of Rothman J in June 2019 that media companies are publishers of comments made by the public on their public Facebook posts, and may therefore be liable under defamation laws for those comments.

Background

Dylan Voller (a former youth detainee whose mistreatment in detention was examined by the Royal Commission into the Protection and Detention of Children in the Northern Territory) brought defamation proceedings against three media companies in relation to comments on their Facebook pages made by members of the public, including the pages for the Sydney Morning Herald, the Australian, and the Centralian Advocate.

One of the elements of the test for proving defamation is “publication” – the plaintiff must prove that the material was published by the defendant. The key issue in this case was whether the defendant media companies were the publishers of comments which had been made on their Facebook posts by other users. In June 2019, the NSW Supreme Court held that this was indeed the case.

For a full summary of the background of the proceedings, see G+T’s update here.

Appeal decision

The defendant media companies appealed the finding of the NSW Supreme Court that they are the publishers of third party comments on their Facebook posts for the purposes of defamation law. The appeal was dismissed by the Court of Appeal.

Three other non-defendant media companies (Bauer Media, Dailymail.com Australia and Seven West Media) also applied to the Court to have the decision overturned on separate legal grounds. They raised the applicability of liability limitations on internet hosts under the Broadcasting Services Act 1992 (Cth), but this application was rejected by the Court of Appeal.

Instrumentality to the publication

The defendants’ primary submission to the Court of Appeal was that they were not publishers because they did not make the posts available to the public, participate in their publication, and were not relevantly “instrumental” in the publication of the defamatory posts. They referred to the classic statement of what constitutes publication by Isaacs J in Webb v Bloch (1928) 41 CLR 331 at 363-364; [1928] HCA 50:

“The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, 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.” (emphasis added by Isaacs J)

The Court of Appeal rejected this submission.

Basten JA held that the defendants had “facilitated the posting of comments on articles…and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory.” As such, they were publishers of third party posts on their Facebook posts.

Meagher JA and Simpson AJA agreed, noting that a person can participate and be instrumental to publication, notwithstanding that others may have also participated in the publication.

Their Honours held that the defendants, having invited the public to comment on their news items, were accordingly responsible for how their Facebook pages were used to publish comments. It was the defendant media companies, they said, who had “provided the vehicle for publication to those who availed themselves of it.”

Meagher JA and Simpson AJA also dismissed the applicants’ submission that “the conclusion that they are liable for the publication of the third-party comments would involve the imposition of a “novel” tortious liability by reason of their failure to prevent publication by third parties.” Their Honours noted that it is “not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person”, as was the case in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Rep 81-127 and Frawley v State of NSW [2006] NSWSC 248.

Their Honours all agreed that the defence of innocent dissemination was not relevant to the facts and issues before them.

Liability of internet content hosts under State and Territory defamation law

The non-defendant media companies in Voller sought to intervene in the appeal proceedings to argue that clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) (Broadcasting Services Act) precludes State and Territory laws (such as the Defamation Act 2005 (NSW)) from imposing liability on an internet content host for hosting particular content if the host was unaware of the nature of the content.

Although not directly relevant to the appeal, Basten JA considered clause 91 in some detail, noting that it provides a broad protection, but only where the host is unaware of the nature of the content.  In the present case, his Honour held that liability for defamation in NSW only arises where the publisher is aware of the nature of the particular content, and that therefore NSW defamation laws operate concurrently with the Broadcasting Services Act.  His Honour also indicated that “internet content hosts” would include operators of websites or pages on platforms which are able to control the content made available to users, where their hosting function was undertaken in Australia.

Meagher JA and Simpson AJA did not consider clause 91 in their decision. However, as it is a defence to liability, it might be expected that the defendant media companies will raise clause 91, and the measure of “awareness”, in subsequent proceedings as to their liability.

Implications

Impact on companies using social media

This decision will likely change the way in which media companies operate their social media pages. In addition to publishing media, many other companies have a strong interest in maintaining high levels of engagement with their audience, including through comments, likes and shares of their content.

The extent to which the decision may affect the use of different social media platforms remains to be seen.  There is no reason in principle why the decision in Voller would not equally apply to other social media platforms – for example, re-posts or invited replies on Twitter, and comments on Instagram and LinkedIn posts – although the nature of how each social media platform may be used, and how comments can be and are moderated, will be a relevant consideration.

Potential liability of social media platforms and other service providers

While the case does not raise the question of whether a social media platform or other online service provider (such as a website host or search engine) may be liable for defamatory posts by third party users, it may be only a matter of time before this issue is also considered by the courts.

In the United States, social media platforms have the advantage of section 230 of the Communications Decency Act of 1996, which protects content hosting companies (such as social media websites and platforms) from lawsuits about content posted by users. Section 230 states that providers and users of interactive computer services are not to be treated as the publishers of information provided by another person, and that website owners and users cannot be held liable for deleting or restricting access to objectionable content if they do so in good faith.

Similarly, the non-defendant media companies in Voller had sought to intervene to argue that clause 91 of Schedule 5 of the Broadcasting Services Act granted them a form of immunity from defamation claims, as internet content hosts. This argument was ultimately unsuccessful in the latest decision, but will likely be revisited in subsequent proceedings. 

However, after Twitter’s decision on 29 May to flag and hide a tweet posted by President Donald Trump for violating its rule against glorifying violence during the George Floyd protests, section 230 is now under review. President Trump’s executive order proposes to limit the availability of the safe harbor protection afforded by section 230 and expose social media platforms to liability in certain circumstances.

The review of section 230 and cases such as the Voller litigation highlight the changing landscape of defamation law in the age of social media, with widespread implications for social media platforms, the companies that use social media, and their audiences.

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