DEFAMATION ALERT – Defamatory Comments on Social Media Posts
On 8 September 2021, the High Court majority ruled in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 that three media companies were publishers of comments made by third parties on their own Facebook page posts.
Author: Angel Luong
15 October 2021
Three media companies, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channel Pty Ltd (hereby collectively referred to as “the Media Companies”), each maintain a public Facebook page. The page is used to share content and connect with Facebook users, who can view and comment on content.
After Mr Dylan Voller was incarcerated in a juvenile detention centre located in the Northern Territory, the Media Companies published articles relating to his detention on their Facebook pages between December 2016 and February 2017.
Third-party Facebook users posted defamatory comments about Mr Voller on their Facebook page. While the Media Companies removed these comments upon becoming aware of them, Mr Voller commenced defamation proceedings and argued that the Media Companies were liable as publishers of the third-party comments.
The trial judge found that the Media Companies were indeed publishers. While this decision was appealed to the NSW Court of Appeal, the Court of Appeal affirmed the trial judge’s decision. The Media Companies again challenged this decision in an appeal to the High Court.
The High Court held that the acts of the Media Companies in facilitating, encouraging and thereby assisting the posting of comments on their respective public Facebook pages by the third-party Facebook users rendered the Media Companies publishers of those comments.
The Media Companies argued that the common law requires that the publication of defamatory material be intentional and that they merely played a passive role in the process of publication. However, the High Court held that “any act of participation in the communication of defamatory material to a third party is sufficient to make a defendant a ‘publisher”.
It was held that each media company became a publisher of each comment posted on its public Facebook page by third-party Facebook users “by reason of its intentional participation in the process by which the posted content had become available to be accessed by the other Facebook user”.
In each case, the intentional participation in that process was sufficiently construed by the Media Companies posting content on their Facebook page, which had the effect of automatically giving the option to Facebook users to ‘Comment’ on their content by posting a comment.
In light of this recent decision, businesses who maintain social media pages (such as Facebook and Instagram) should minimise third party engagement to minimise their risks of liability for defamation.
Let ALG bridge the gap between defamation law and you. Contact us for your free 30-minute initial consultation on 02 4220 7100, or email lawyers@alg.com.au.
