09/09/2021

Sweeping changes in modern communication do not warrant relaxing the strictness of the common law regarding the publication of defamatory material. So the High Court has found, in a decision that should make all organisations hosting or facilitating online or social media content alert to the risks of being found liable for comments made by others.

By a 5:2 majority, the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller), held to an orthodox interpretation of “publication” under defamation laws and, in effect, rejected the argument made by the media company appellants that they should not be liable for defamatory posts on Facebook pages that they controlled, because they did not intend the material to be posted. We previously wrote about the lower court decisions in this matter at first instance and on appeal.

While the appellants in this case are media companies, and the relevant posts occurred on a Facebook page, the effect of this judgment extends well beyond Facebook and the media, and will apply to:

  • all people and organisations that maintain their own websites and social media pages, including non-media companies, not for profits and government bodies; and
  • all websites and social media pages, not just Facebook.

This decision underscores the risks in facilitating and encouraging the posting of comments by third-party users on webpages that an organisation controls. Such facilitation could be enough to establish that the relevant organisation is a “publisher” for the purposes of defamation law.

Put simply, the decision confirms that an organisation or person opening a site or post to comments by others may be liable for any defamation in the comments others then make. Larger organisations may be able to track, vet and remove problematic posts quickly, but for individuals and organisations without continuous site monitoring, their risk from third party posts might be more difficult to control or mitigate.

Facts

The case stemmed from a defamation claim brought in the NSW Supreme Court by Dylan Voller against the defendant media companies over comments made by Facebook users on news stories posted to Facebook by the media companies. The Court ordered that the question of whether the media companies were in fact the “publishers” of the defamatory material should be determined as a separate question.  At first instance in the NSW Supreme Court and later in the Court of Appeal, it was held that the media companies who hosted the Facebook pages had published the material and could therefore be liable in defamation for comments made by third parties on those pages about Mr Voller. The media companies, which operate websites such as those associated with the Sydney Morning Herald and The Australian newspapers, appealed to the High Court on the question of whether they were publishers of the comments.

Publication – a term of art

An essential element of Australian defamation law is that material must be published before it can be defamatory.  In their concurring judgment in Voller, Gageler and Gordon JJ quote the former US Supreme Court Justice and Chief Judge of the New York Court of Appeals, Benjamin Cardozo that “[i]n the law of defamation, 'publication' is a term of art ... A defamatory writing is not published if it is read by no one but the one defamed. Published, it is, however, as soon as read by any one else."

The orthodox approach to what constitutes publication in Australia was set down by the High Court in the 1928 decision of Webb v Bloch (1928) 41 CLR 331 and was confirmed in the 2018 case of Trkulja v Google LLC [2018] HCA 25.  Under this approach, every intentional participant in a process directed to making material available for comprehension by a third party is a "publisher" once that matter becomes comprehensible to a third party. 

In their judgment, Gageler and Gordon JJ traced the history of this strict rule: printers could be liable for defamatory words they printed, as could an illiterate servant carrying a defamatory message for a master.  Gageler and Gordon JJ did not think that changes in modern communication should shift the principle (at [86]): “The advent of the Internet has resulted in a "disaggregation" of the process of publication and has facilitated a shift from "one-to-many" publication to "many-to-many" publication. That technological and sociological development has not been shown to warrant relaxation of the strictness of the common law rule associated with Webb v Bloch.

Participation in publication

In Voller, the High Court justices differed in their assessment of whether the media companies had “participated” in the act of publication.

In the plurality opinion of Kiefel CJ and Keane and Gordon JJ, it was the acts of the media company appellants in “facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users” that rendered them the publishers of the comments.

Gageler and Gordon JJ drew attention to the benefits that the media companies obtained by hosting Facebook pages.  “The primary judge found that over 15 million Australians are Facebook users,” their Honours said.  “The appellants chose to operate public Facebook pages in order to engage commercially with that significant segment of the population… The appellants' attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.

The fact that, at that time, Facebook’s functionality did not include a mechanism enabling media companies to disable third party comments, or to subject all third party comments to pre-moderation, was held to be irrelevant to the question of whether the media companies were publishers (at [99]). 

However, the decision leaves some uncertainty about what is required for the host of an online comment to be considered a participant in the publication process.

Edelman J, who would have allowed the appeal in part, raised the hypothetical scenario of a media company posting an innocuous story about the weather on which a third party posted something unconnected and defamatory.  For Edelman J, the media company would not be liable unless the link between the comment and the story was more than remote or tenuous (at [142]).

Also in dissent, Steward J considered that the media companies should only be liable for comments that they had “procured, provoked or conduced” (at [179]).

Gageler and Gordon JJ distinguished the situation faced by the media appellants from the “graffitied wall” cases, in which issues have been raised as to whether the owners of buildings or noticeboards on which defamatory statements were made should be liable.  “There is plainly a critical difference between that line of cases, involving defendants who have played no role in the facilitation of publication prior to becoming aware of the defamatory matter, and the present case,” they said (at [103]). 

Publication does not require knowledge

It has long been clear that an entity which provides a platform for third party comments who is notified of their defamatory nature, but fails to take the reasonable steps available to it to deal with those comments, will be liable as a publisher. It was uncertain whether such entities would be liable as a publisher prior to receiving notice.

In Tamiz v Google Inc [2013] 1 WLR 2151, the Court of Appeal of England held that Google Inc was not a publisher of allegedly defamatory comments posted on a blog because it had no notice of the comments. The English approach was followed by McCallum J in Bleyer v Google [2014] NSWSC 897.

In contrast, in Trkulja v Google LLC the High Court of Australia held Google Inc could be liable as a publisher prior to notice of the defamatory matter. The Voller decision confirms that entities which provide the infrastructure for defamatory comments can be held liable as publishers with or without notice.  The English line of authority was firmly rejected by Gageler and Gordon JJ, who state at [92] that the reasoning of the Court of Appeal in England in Tamiz v Google Incdoes not reflect the common law of Australia”. 

However, Steward J at [173] refers to Tamiz v Google Inc to suggest that “concepts of passivity, control and ­prior knowledge of defamatory content may be relevant to a factual determination as to whether a person has participated in the publication of a third party’s defamatory post” (emphasis added).

Potential legislative reform

The decision comes as the NSW Government is leading a further review of statutory defamation laws.  This review, which commenced in April 2021, is examining the extent to which social media sites should be liable for defamatory material.

In their judgment, Gageler and Gordon JJ signalled that the potential for legislative reform was a reason for maintaining the orthodox common law approach to defamation (at [89]): “Two considerations strongly support maintenance of the strictness of the common law rule in Australia. The first is fidelity to the underlying concern of the common law of defamation to protect against damage to reputation, which should not be diminished as the threats to reputation are multiplied. The second is recognition that the balance that has been struck between freedom of communication by means of the Internet and protection of reputation is one that the Commonwealth Parliament … and that State Parliaments and Territory legislatures (in enacting and maintaining and providing for review of the Defamation Act and cognate legislation) have determined for the time being to be appropriate against the background of the stable application of common law principle.”

Defence of Innocent Dissemination

The Voller decision also clarified the operation of the defence of innocent dissemination.  Under this defence, the publisher of a defamatory statement (such as a bookseller or photocopier) is not liable for defamatory content they might have published if, among other things, they were not aware of the defamatory content and did not have capacity to exercise editorial control over it.

The decision in Voller (at [49]) clarified that this defence operates once the tort of defamation is established – that is, the bookseller would still be taken to have published the book by selling it, but would not be liable if they made out the defence.

Next Steps

In light of this decision, organisations should review their risk framework on social media engagement, particularly where the public is allowed to post on their pages without prior vetting.

We note that Facebook has since allowed publishers to switch off comments on certain posts. 

In the meantime we await the outcome of the NSW review and, if any changes are made to the existing framework, hope that a pragmatic balance is achieved between protections to individuals and facilitating online community engagement.

""