The High Court of Australia’s ruling in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 has raised some eyebrows and may be a valid cause of alarm for media outlets. Essentially, the High Court concluded that media outlets are legally responsible as “publishers” for third parties’ comments posted on their Facebook pages. If comments are found to be defamatory in nature, media outlets may be held liable as publishers of the posts.
Background facts
The case revolves around the content produced by news outlets including The Sydney Morning Herald and The Australian regarding former Northern Territory youth detainee Dylan Voller. This content was published and shared on Facebook pages that were maintained by the appellants and publicly accessible to users, who are able to view and comment on the posts. Potentially defamatory comments regarding Mr Voller were then posted by readers on the Facebook pages, triggering the launch of these defamation proceedings.
Defamation law in New South Wales
The Defamation Act 2005 (NSW) refers to the ‘publication of defamatory matter with the definition of ‘matter’ being inclusive of articles, reports or other things communicated via traditional or electronic forms of media.
It has long been the case that a person or entity can become liable for the continued publication of defamatory comments by unauthorised third parties on physical walls or noticeboards controlled by them once they become aware of the comments and fail to remove them. Section 32 of the Act, however, also makes available the defence of innocent defamation, which is intended to protect people or entities who unwittingly publish defamatory matter without negligence on their part. Establishment of the defence turns upon the state of the publisher’s knowledge of a defamatory publication.
Finding
The High Court affirmed the NSW Supreme Court’s ruling in finding that the appellants were liable as publishers of readers’ Facebook comments. By maintaining their Facebook pages, the media outlets were responsible for facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users. Where the operator of the page – a kind of electronic bulletin board – posts material with the intention that third parties will comment on material posted, the operator cannot escape being a publisher of the comments of those third parties.
Implications of the High Court’s ruling
This decision confirms that proof of a voluntary act of participating in the dissemination of the defamatory matter is enough to make an entity a publisher.
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