Posted on June 30, 2019 by Elaine Yeo and Megan Hawley

Defamation: Can you be sued for comments on your Facebook page?

The Supreme Court of New South Wales recently held that three media companies were the ‘publishers’ of comments made by members of the public on their public Facebook pages for the purposes of a defamation claim.  The case sets a significant precedent and imposes greater responsibility on those who operate a public Facebook page for comments made by third parties.

In Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, the question before the Court was whether the defendant media companies were the publishers of comments made on their respective public Facebook pages by members of the public.

The media companies- Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd each operated a public Facebook page and used it to disseminate links to news stories. Typically, a link was posted on their public Facebook pages and a story was introduced with an image and a headline. The public was then invited to make comments either on the public Facebook page or the news website.

Liability in defamation arises because of the publication of the defamatory material. Publication occurs when the material is delivered to the public. The Court found that that only occurred in respect of comments when the comment is placed in a form which is comprehensible to and able to be downloaded by the public. That is done by the owner of the Facebook page, not the author of the comment.

For that reason it was held that each media company was not only a publisher of the comments but the primary or main publisher. Being found to be a primary publisher is significant as it means the ‘innocent dissemination‘ defence is unavailable. Generally, a primary or main publisher has the primary liability for defamation.

Factors which led the Court to find that the media companies were primary publishers included that they allowed and encouraged comments, and that they had the capacity to hide comments until they could be monitored and vetted, but did not do so. The Court referred to the ability of the media companies to block all comments including common words such as ‘the’ and ‘a’, so they could be reviewed before publication.

It was also significant that the primary purpose of the operation of the public Facebook page is to further the media companies’ own commercial interests by optimising readership of their newspaper. The defendants were not merely a conduit of the comments, but provided the forum for publication and encouraged for its own commercial purposes, the publication of the comments.

The Court considered that a public Facebook page is unique, and is different to a website or an individual’s personal Facebook page.

Moving Forward

Defamation law in the social media space is an emerging area and this case sends an important message about the level of responsibility on owners of public Facebook pages. The decision was handed down only weeks after Inner West Council Mayor Darcy Byrne received an apology from another local councillor, Pauline Lockie. Cr Byrne demanded that Cr Lockie apologise for comments written by others on Cr Lockie’s Facebook page. It seems that apology was appropriate in light of this decision.

It is clear that owners of Facebook pages will now potentially be liable for not only any defamatory material they author, but comments made by others on their pages.

Many local councils have public Facebook pages, and whilst they would not be considered to be running the pages for commercial purposes, they do generally invite comments. Councils should in light of the decision, review their processes for monitoring comments on their pages and give consideration to hiding comments until they are vetted in the way suggested by the Court.

If you wish to discuss the above please contact Megan Hawley on 8235 9703 or Elaine Yeo on 8235 9712.