The role of media corporations in social media defamation proceedings

The High Court of Australia (the High Court) has recently confirmed the well-known position that operators of social media pages are responsible for the comments made on their posts by third parties for the purposes of defamation law.

Facts

Fairfax Media Publications Pty Ltd (Fairfax), Nationwide News Pty Limited (Nationwide) and Australian News Channel Pty Ltd (Australian News) separately posted on their public Facebook pages about particular news stories referring to Mr Dylan Voller (the Posts). The Posts concerned Mr Voller’s incarceration in a juvenile justice detention centre in the Northern Territory.

Various third-party Facebook users responded to the Posts with comments that Mr Voller says are defamatory of him.

Mr Voller commenced separate defamation proceedings in the Supreme Court of New South Wales (the Supreme Court) against Fairfax, Nationwide and Australian News. The first issue to be determined, which was the subject of the High Court proceeding, was whether Mr Voller established the ‘publication’ element of the cause of action of defamation against Fairfax, Nationwide and Australian News in respect of each of the Facebook comments by third-party users. That is, whether Fairfax, Nationwide and Australian News were ‘publishers’ of those comments.

The Supreme Court, both before a single Judge and on appeal, determined that Fairfax, Nationwide and Australian News were all publishers of the relevant third-party comments. The media corporations (the Appellants) appealed those decisions to the High Court, arguing that they did not make the defamatory comments available to the public, did not participate in their publication, but merely administered a public Facebook page on which third parties published material.

Decision

The crux of the Appellants’ argument was that the common law requires that the publication of defamatory matter be intentional – it is not sufficient that a defendant merely plays a passive instrumental role in the process of publication.

However, the majority of the High Court rejected that argument and reiterated, by reference to a number of authorities, that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.

Reliance was placed particularly on the well-known High Court decisions of Trkulja v Google LLC (2018) 263 CLR 149 and Webb v Bloch (1928) 41 CLR 331. Those authorities support the position that:

• a publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it;
• a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher;
• all that is required is a voluntary act of participation in its communication.

Accordingly, the majority of the High Court held that Fairfax, Nationwide and Australian News were all found to be publishers of third-party comments on their public Facebook pages in respect of news stories that referred to Mr Voller. Specifically, it was held that “the creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties.”

Each of the appeals were dismissed with costs and the balance of the proceedings will be heard to determine whether the publications were indeed defamatory of Mr Voller.

Take Home Messages

The High Court’s decision reiterates the strictness of the publication rule in the tort of defamation. Each organisation that operates social media page(s) and publishes posts which are available for comment by the public, are ultimately open to being liable if such comments are defamatory of another person. Media corporations will need to continue to balance optimising readership of their publications with the risk of being held liable for defamation.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.