Australia: Innocent dissemination and secondary publisher defences no longer available to owners of Facebook pages: NSW Supreme Court

In Voller,1 the Supreme Court of New South Wales recently held that, for the purposes of defamation liability, media companies are considered to be the primary publishers of third party comments on their public Facebook pages.

The decision has implications for media companies as it may expose them to liability under defamation law for any damages resulting from defamatory comments by third parties on social media or other online platforms.

Further, the classification of media companies as primary publishers means that the defence of innocent dissemination2 will be unavailable in circumstances where administrators have the ability to review comments before they are posted.

Background

Dylan Voller, a former youth detainee whose mistreatment in detention was the subject of a Royal Commission into the Protection and Detention of Children in the Northern Territory, brought a defamation action against three media companies – Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd.

Voller's claim related to allegedly defamatory comments written by members of the public in reply to articles posted on the media companies' respective Facebook pages between July 2016 and June 2017.

The claim related only to the comments and not to the specific articles that were posted.

Issue

The preliminary question considered by the Court was whether the plaintiff had established the publication element of the cause of action of defamation against the media companies in respect of each of the Facebook comments by third-party users.

The Court also considered whether the media companies are the primary or secondary publishers of third party comments.

Decision

On 24 June 2019, Justice Rothman held that Voller had established that the media companies were the primary publishers of Facebook comments by third parties.

Justice Rothman stated that 'each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments'.

The Court's reasoning mainly relied on two aspects.

First, the technical capabilities of public Facebook pages. Administrators have the ability to control third party comments on their posts through pre-determined filters using keywords and by restricting all comments from becoming publically available until they have been reviewed or un-hidden.

In handing down his judgment, Justice Rothman made a clear distinction between websites where administrators do not have the ability to pre-monitor comments before they are posted and websites where administrators do have the ability to review comments that might be defamatory before they are made available to the public.

If publishers have the ability to review comments, regardless of whether they utilise this ability, it means that media companies effectively have the ultimate control over the comments that are posted and 'cannot escape the likely consequences of [their] actions by turning a blind eye to it'.

Second, the Court's finding that the articles to which the third party comments responded related to 'an emotive issue' that could trigger 'very strong positions on both sides, including quite unreasonable positions', as a result of which, the media companies were 'aware' that comments 'were likely and more probably than not would include defamatory material'.

In these circumstances, the Court was of the view that the media companies ought to have delayed the publication of any third party comments until they were reviewed for defamatory content.

Implications

Following the Voller decision, it is important that companies review their methods for moderating comments on their content by third parties on social media and other online platforms.

While this decision only relates to publication and not liability for defamation, it has opened up possibilities for media companies to be liable for defamatory posts made by third parties, particularly given that many stories published by the media relate to emotive issues that have the potential to trigger competing views.

Notably, the Voller decision does not go so far as to render the content hosts themselves (in this case, Facebook, but potentially also other social media platforms like Twitter, and search providers like Google) directly liable for the content they host.

That being said, the decision is still significant as it confirms that:

  • if 'owners' of Facebook pages post matter that is likely to trigger third-party comments expressing competing views, they can no longer argue that they are 'secondary publishers' and are therefore not liable for defamatory content posted on their pages by third parties until they are made aware of it by a complainant (the availability of such defence being confirmed by the High Court in Trkulja v Google LLC [2018] HCA 25 and by the Full Court of the Supreme Court of South Australia in Google Inc v Duffy [2017] SASCFC 130); and
  • the innocent dissemination defence (s 32 Defamation Act 2005) is no longer available for the 'owners' of Facebook pages in the above circumstances.

Footnotes

1 Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

2 Defamation Act 2005, s 32

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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