Posted on September 27, 2021 by James King and Megan Hawley 7

Defamation: High Court confirms comments on Facebook pages ‘publication’

On 8 September 2021, the High Court of Australia held that under defamation law media companies are ‘publishers’ of comments made by members of the public on their Facebook posts and are responsible for the moderation of comments on the public Facebook pages they administer. The findings made in the judgment would likely extend to any public social media account where third parties can comment on posts.

The case arose from an appeal by the media companies of an earlier decision of the Court of Appeal of the NSW Supreme Court, discussed in our blog here. In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the majority of the High Court dismissed the media companies’ appeals from that judgment. The High Court judgment can be found here.

Background to the Proceedings

Mr Voller commenced defamation proceedings against Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd (the media companies), claiming that he had been defamed by third party comments made under posts by the media companies on their Facebook pages.

The posts related to Mr Voller’s mistreatment while being held at the Don Dale Youth Detention Centre in the Northern Territory.

Mr Voller’s mistreatment was part of the reason for the establishment of a Royal Commission into Youth Detention in the Northern Territory in 2017.

The High Court Judgment

The media companies asked the High Court to find that they were not liable in defamation for comments made on their Facebook pages, as the publication of defamatory matters must be intentional. The Court rejected their arguments and emphasised that as long as a person or organisation allows and encourages the communication of a matter, including a defamatory matter, that person is a publisher under defamation law.

The Court held that the media companies had participated in the publication of the comments as they had:

• contracted with Facebook for the creation and provision of their pages,
• posted content on their pages which automatically gave users an option to comment, and
• allowed comments which (if not filtered) were automatically accessible by other Facebook users.

The Court found it was not relevant that the media companies did not intend that the publication of the third party comments would cause injury to Mr Voller’s reputation.

Two of the judges of the Court singled out the media companies for their ‘attempt to portray themselves as passive and unwitting victims of Facebook’s functionality’ which had an ‘air of unreality’ given they operate their public Facebook pages in order to increase readership and advertising revenues.

Despite this comment, it is unlikely that the High Court decision requires a commercial motive in order for an administrator of a Facebook page to be considered a publisher of comments.

The matter is ongoing in the NSW Supreme Court for determination of whether the comments are defamatory and whether the media companies are liable to Mr Voller for the publications.

Matters to consider

This decision has confirmed the courts wide interpretation of who will be considered a publisher, and therefore liable for defamatory comments. Agencies should, as previously suggested in our earlier blog, review their processes for monitoring and moderating comments.

Reforms incoming?

As we discussed here there has been a raft of recent changes to defamation law in NSW as part of the ongoing reforms in the area. On 31 March 2021 the Attorneys-General released a discussion paper for the stage 2 review of model defamation provisions. That paper considers whether some immunity should be provided to internet intermediaries, such as Facebook administrators, for third party content.

We will continue to monitor changes to the law, and provide further commentary.

If you wish to discuss the above please contact Megan Hawley on 8235 9703 or James King on 8235 9722.