Comment is free – but it could cost businesses who aren’t careful about what is posted on their social media

1 October 2021

News

In a world-first decision, the High Court of Australia has found that media organisations are publishers of third party comments posted on their Facebook pages.

The decision has ramifications for all organisations, government entities and individuals who operate a public Facebook page, as the court’s findings are not confined to the media.

It is possible that the decision could also be applied to other digital and social media platforms which enable third party commentary.

To manage the risk of being sued for defamation, businesses will need to carefully consider how they manage and moderate third party comments on their online platforms. They may need to dedicate resources to actively moderate comments as soon as they appear or restrict the ability for third parties to comment where that functionality is available.

The ramifications are starting to be seen with Tasmanian Premier Peter Gutwein not allowing comments on some Facebook posts and CNN restricting access to its Facebook pages in Australia.

What happened

Former youth detainee Dylan Voller commenced defamation proceedings in the NSW Supreme Court against the publishers of The Australian, The Centralian Advocate, the Sydney Morning Herald and Sky News.  He sued over third party comments on posts by the media companies on their Facebook pages.  No complaints were made about the posts themselves, which were links to articles or television segments on the media companies’ respective websites.

Mr Voller was the subject of a Four Corners story when he was in youth detention in the Northern Territory, and some of the comments posted on the Facebook pages made allegations which he claims are false and defamatory.  However, the media organisations had no knowledge of these comments due to the sheer volume of content on their Facebook pages and the challenges of moderation, and were not notified of the comments nor given an opportunity to take them down before proceedings were commenced.

In those circumstances, the media organisations did not consider that they were publishers of the third party comments, and applied for the Court to determine the issue of publication upfront, ahead of the substantive defamation case going ahead.

By a five to two majority, the High Court ruled against the media parties and held that they were publishers of the third party comments and could be sued for defamation.  The majority found that the act of setting up a Facebook page and posting content to that page which other users could comment on was sufficient for the media organisations to become publishers as soon as those third party comments appeared and were accessed by others.

Lessons

The practical impact of the majority’s decision in this case is serious and wide ranging.  The case has extremely broad implications given it won’t just apply to the media – the decision will apply to anyone with a Facebook page, including other businesses, government bodies, community groups and even individuals.  As Justice Steward observed in his judgment, the outcome of the majority’s position in this case is that “all Facebook page owners, whether public or private, would be publishers of third‑party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredicted”.

The decision is likely to have a chilling effect on freedom of expression – media outlets and other businesses with a Facebook presence will need to either shut down comments on posts on their pages (which Facebook has now given the functionality to allow them to do) or they will need to invest significant resources in moderating the comments in order to mitigate their exposure to expensive defamation claims.

The result of the decision is that the position in Australia is now different to other Western democracies, including the United Kingdom, the United States and New Zealand.  In the most similar case internationally, the New Zealand Court of Appeal held that an individual internet user who was the administrator of a private Facebook page and who had no “actual knowledge” of the contents of third-party comments posted on the page was not liable in defamation.

Next steps

The outcome is disappointing because this was a missed opportunity to update the law for the modern age of digital publication.  However, changes may be coming – the second stage of the defamation law reform process is currently considering whether to introduce a legislative fix for this issue.

It is strongly arguable that reform is needed to give effect to the object of the Uniform Defamation Acts to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance.  More information on the reform process, and the opportunity to make submissions, is available here.

Recent reforms requiring complainants to send a “concerns notice” to a publisher before they can commence legal action also provide some relief.  It gives publishers the opportunity to resolve a complaint before legal action progresses.

In terms of the Voller case itself, the matter will now be sent back to the NSW Supreme Court.  The case is still at a very early stage, and the media outlets are yet to file defences.  It remains open to the media parties to raise a defence of innocent dissemination.

If you would like more information about the Voller case and its implications, please don’t hesitate to contact our Media Law team.

Authors

Marlia Saunders | Partner | +61 2 8248 5836 | msaunders@tglaw.com.au

Corey Jankie | Senior Associate | +61 3 9641 8621 | cjankie@tglaw.com.au