Media outlets confirmed as ‘publishers’ of Facebook comments
On 1 June 2020, the New South Wales Court of Appeal handed down its decision of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102 (Voller). The Court upheld the finding that the media outlets are ‘publishers’ of defamatory Facebook comments made by the general public.
Up until now, businesses have been relatively protected from liability for defamation where comments are made on their social media pages by third parties. However, this decision has the potential to impact any business that administers a Facebook page or even similar platforms such as Twitter and Instagram.
Businesses must keep updated of the developing law in this area and actively take steps to mitigate the risks of exposure to liability.
Key Facts and Background of Voller
Fairfax Media Publications, Nationwide News Pty Ltd and Australian News Channel Pty Ltd (Media Outlets) published articles on Facebook reporting on Mr Voller’s experience in a Northern Territory juvenile detention centre.
Members of the general public left comments on the articles published on the Media Outlets’ Facebook page. Ten of the comments were alledged by Mr Voller to be defamatory including one which involved a false accusation that he assaulted a Salvation Army worker.
Upon becoming aware, the comments were promptly removed by the Media Outlets. Mr Voller then sued the Media Outlets and argued their liability as publishers of the third-party comments.
To establish defamation, the threshold issue of the defendant being a ‘first or primary publisher’ must be made out. The trial Judge firstly considered this point prior to the commencement of the defamation proceedings. The Judge found that the Media Outlets were publishers. The decision was then appealed by the Media Outlets.
Are Media Outlets liable for defamatory Facebook comments?
The Media Outlets asserted that they were not publishers of the general public’s comments on the Facebook pages that they administer.
In addition, the Media Outlets raised that they could not be regarded as adopting the position of the comments as they had acted promptly in removing the defamatory comments in question as soon as they came to their attention.
An additional question was raised on appeal by, Bauer Media, Seven West Media and Daily Mail Australia (Non-Party Participants) on the grounds that they were interested parties and were affected by the appeal. They argued that a media outlet constitutes an ‘internet host’ under Schedule 5, clause 91 of the Broadcasting Services Act 1992 (Cth). If successful, the Media Outlets would be exempt from actively monitoring their social media pages and remove the liability both civil and criminal in circumstances where they are unaware of infringing content.
The Non-Party Participants were not allowed by the Courts to participate and were denied the opportunity to present this argument. Therefore, additional arguments exist which have not yet come before the Court which could have further influence on the determination of whether news outlets are publishers.
Decision of Voller
The Court upheld the Trial Judge’s decision in that the Media Outlets were publishers of the defamatory Facebook comments. The Court considered the issue in light of the internet platform and noted that a party who, facilitates and encourages the posting of comments on a discussion forum constitutes a publisher.
The Court said that the Media Outlets constituted publishers because they each;
- subscribed to a facility enabling them to be an ‘official’ Facebook page for the newspaper;
- encouraged participation (either expressly or impliedly) by the general public in the comments section; and
- maintained control over the platform (had the ability to monitor and delete user comments).
It was held that the fact the comments had been promptly deleted was irrelevant to the issue as it was the Media Outlets that facilitated their publication in the first instance.
Wider Implications to Businesses
The Voller appeal highlights the interaction between new technologies and defamation law in Australia. Evidently, this is an evolving area of law with further developments anticipated in the near future. As the Court of Appeal has only decided on the threshold issue of the ‘publisher’ element to defamation, we are yet to see what the Court makes of the remaining elements and whether media outlets could establish further defences.
What can be established is that Voller has broadened the scope of liability and businesses are no longer able to avoid the risk of defamation claims on the basis that they are not a ‘publisher’ of third-party defamatory comments.
This decision requires media outlets to assess the way they have their comments set up and consider practical solutions to mitigate the risk of exposing themselves to liability.
If you run a business social media page and are concerned that you may be at risk of liability and require further advice on how to mitigate those risks, contact us on 1300 749 709 to see how one of our experienced litigation lawyers can assist you.