The Supreme Court of New South Wales (NSWSC) recently found (in Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766) that media companies are considered to be publishers of third party comments posted to their public Facebook pages. This is relevant in the field of defamation law because such media companies may then be held liable for any damage incurred as a result of the third party defamatory comments. While the court hasn’t determined whether the comments in question were in fact defamatory, it has satisfied itself of the first element required to prove defamation: publication.

Background

In three proceedings, 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 an action of defamation against Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channel Pty Ltd for allegedly defamatory comments posted by members of the public to posts on the media companies’ respective Facebook pages between July 2016 and June 2017. Importantly, Voller’s claim does not relate to the specific articles posted by the media companies on their Facebook pages, rather the comments that were made on those posts by third parties. 

Defamation

Broadly, the test to prove defamation under general law requires:

1. Publication – the material must be published to at least one third party;
2. Identification – the material must identify (directly or indirectly) the allegedly defamed person; and
3. Defamatory meaning – the material must be defamatory to the ordinary, reasonable person.

Question

The question addressed by the court 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?”

Decision

Rothman J ultimately determined that the defendant media companies had published the allegedly defamatory comments.

Monitoring capability

His Honour’s reasoning turned primarily on the technical capability of public Facebook pages, and the ability of administrators to control the types of comments made on their posts. This is possible either through pre-determined filters (eg, key words) or through an outright restriction on all comments being made public until each has been reviewed and “un-hidden” by the administrators of the page.

His Honour made the distinction between websites where administrators have no control to pre-monitor comments that are posted versus those where administrators can delay the publication of comments and review them to determine whether they might be defamatory before they post them. In essence, by having the potential capability (even if unused) of making comments subject to the administrator’s review, media companies having effective control over the ultimate publication of the comments having to pass administrators, this amounts to the media companies having effective control over the ultimate publication of the comments. 

It’s the risk you take

On the balancing question of freedom of speech against a person’s reputation, Rothman J placed considerable emphasis on the fact that media companies operate Facebook pages for purely commercial purposes.  His Honour indicated that such companies may encourage the posting of provocative comments on posts to drive greater traffic to the article on a linked website. To this, he stated: “a defendant cannot escape the likely consequences of its actions by turning a blind eye to it.” 
Therefore, his Honour found that “each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.” This is in contrast to an individual posting defamatory comments on their personal page to only their friendship network – a point which Rothman J left undecided on the publication front. 

What’s next

While this decision may be breaking new ground for intermediaries as publishers, it is notable that it only deals with publication, not liability. However, if media companies are found to be liable for defamatory comments as the first or primary publishers, the commonly used defence by of innocent dissemination might not be available to them. 

It is important to remember that this is a first-instance decision that may be subject to an appeal. Indeed, given the emerging nature of this area, Rothman J suggested that it might lead to a decision that can only be made by “others in the judicial hierarchy”.
In the meantime, interested parties may look to consider the cost analysis associated with employing moderating tools or otherwise ban comments altogether until this case is determined. No doubt the outcome may also hold some influence over the current NSW-led review into defamation law.

Authors: Andrew Hii and Robert O'Grady