In 2017 former Northern Territory youth detainee Dylan Voller successfully pursued a number of media outlets through the NSW Supreme Court and Court of Appeal on the basis those organisations were liable as publishers of third-party comments made in response to articles posted on their public Facebook pages.
In a decision with prospective far-reaching implication, the High Court has upheld the decision of the lower Courts and confirmed that the news outlets are indeed “publishers” for the purpose of pursing a claim for defamation. (Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021))
Previously the position was that one could only be held liable as a publisher after being on notice of the defamatory publications. As noted in The Guardian article of 9 September 2021 such an obligation on disaffected parties “caused defamation lawyers in the digital age to pull their hair out as they tried to give proper notices to platforms and hosts whose locations were not obvious and processes incomprehensible.”
Importantly, the High Court’s decision does not finalise the matter but means the case now returns to the NSW Supreme Court to determine whether Mr Voller was indeed defamed, and if so, what defences might be available to the news organisations. On the basis the defamation is established in the positive and the publisher is unable to establish a defence, the Court will turn to what damages flow from the defamation. One might speculate that the prospects for a commercial settlement would seem to have been enhanced by reason of this decision.
Interestingly, the original NSWSC decision was considered controversial at the time and, not unexpectedly, media lawyers considered the decision went too far and was unfair to those who set up and administered public Facebook pages.
The news outlets contended that the common law requires that the publication of defamatory matter be intentional – that it was not sufficient that a defendant merely plays a passive instrumental role in the process of publication.
To say the majority was unconvinced by this argument would be trite:
Having regard to those findings, 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. (at [102])
As noted by Rebekah Giles in her aforementioned excellent The Guardian article (9 September 2021) following the decision:
This is an important point that is often made by defamation lawyers. Where a person uses a digital platform for commercial benefit and that platform or page hosts content that has unlawfully defamed a person, why should they not be held legally responsible? Why aren’t resources devoted to proper moderation and removal processes? Any person who has reported online defamatory comment would agree that it is a difficult, frustrating and often unproductive process.
The majority concluded:
In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments. (at [105]).
A number of matters should be noted:
- This decision does not on its face affect the possible exposure of the platform, Facebook, which as the law presently stands, may still avoid liability as a publisher on the basis of the prompt removal of defamatory content upon notice.
- The recent amendments to the Defamation Act now require a potential applicant to establish, amongst other matters, “serious harm” – which we can only presume (in the absence of a legislative definition or judicial precedent) will be along the lines of the equivalent UK definition – requiring “the [applicant] to point to either some “historic harm, which is shown to have actually occurred” or “probable future harm”. (Lachaux v Independent Print Ltd [2019] UKSC 27, at [14])
However, the decision clearly has potential serious ramifications for not only news outlets but any organisation or individual hosting and administering a social media page which allows public content to be posted. And, more importantly in my view, for those aggrieved and harmed as a result of the toxicity which can be social media, the decision now potentially provides a very real opportunity for redress.
Damian McGrath
Special Counsel
Ezra Legal
