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Court of Appeal confirms that media outlets are ‘publishers’ of defamatory comments made on their Facebook pages by third parties

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On 1 June 2020, the New South Wales Court of Appeal handed down the decision of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102, upholding the finding by a single judge that media and news companies were ‘publishers’ of defamatory comments made by third parties on Facebook pages maintained by those companies, and accordingly potentially liable to pay damages in respect of the publications.

 

Background facts

In July 2017, a Northern Territory youth detainee, Dylan Voller (the plaintiff), commenced proceedings in the Supreme Court of NSW against three media companies, Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd, and Australian News Channel Pty Ltd (the defendants), claiming damages for defamation based on the content of third party posts on Facebook pages maintained by the defendants.

The comments on Facebook were made in relation to news articles published between 2016 and 2017 about the plaintiff’s mistreatment in a youth detention centre, which led to a 2016 royal commission.

With the agreement of the parties to the litigation, the NSW Supreme Court adopted the course of determining as a separate question whether the plaintiff has established the publication element of the cause of action of defamation against the defendants in respect of each of the Facebook comments by third party users (as the defendants asserted that if the Court answered that question in the negative, then the proceedings should be dismissed).

On 24 June 2019, Rothman J delivered judgment to the effect that that the defendants could be considered ‘first or primary publishers’ of the third-party comments: [2019] NSWSC 766. In particular, Rothman J considered that the defendants “facilitated the posting of comments on articles published in their newspapers” and could not “escape the likely consequences of its action by turning a blind eye to it.”

Not surprisingly, considering the wide implications of this decision for media outlets, the defendants appealed against Rothman J’s decision to the Court of Appeal.

The Court of Appeal’s decision

Before the Court of Appeal, the defendants submitted that to be publishers, they must have been instrumental to, or an active participant in, the communication – which (they argued) they weren’t, as they only administered a public Facebook page on which third parties published material. The defendants submitted that they were more closely equivalent to the supplier of paper to a newspaper owner, or the supplier of a computer to an author.

This submission was unanimously rejected by the Court of Appeal, which confirmed the correctness of the principle “that a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees” (at [111]).

In the present case, the Court of Appeal highlighted the fact that each media outlet defendant separately subscribed for a specific ‘official’ Facebook Page and posted content to that Page which invited and encouraged third parties (being users of Facebook) to “Like” or “Comment” on the posted news items (in circumstances where such comments would be public and viewable to Facebook users generally on the Page). This was held to be sufficient degree of participation to satisfy the element of publication. What the defendants knew or ought to have known about the content of the comments on their Facebook Pages, and the fact that when the defendants’ attention was drawn to the comments they were promptly removed, was irrelevant to the outcome of the publication issue.

The Court of Appeal did not decide any other pertinent questions such as whether the posts are defamatory of Mr Voller and whether any damages should be awarded to him – so, for example, the potential applicability of the defence of “innocent dissemination” pursuant to section 32 of the Defamation Act 2005 (NSW) will still need to be determined by the Supreme Court. As the Court of Appeal noted, the defence of innocent dissemination “operates as a defence against liability, not a denial of publication.”

Consequences of the decision

This decision will have potentially wide-ranging ramifications on media companies and indeed for anyone who administers a Facebook or other social media page on which third parties can publish material. Indeed the defendants have already asserted in a press release that the decision means that “media cannot share any story via Facebook without fear of being sued for comments which they did not publish and have no control over”.

The defendants have also foreshadowed an application to the High Court for leave to appeal against the Court of Appeal’s decision, stating that the decision has shown that Australian defamation law is “completely out of step with the realities of publishing in the digital age” – and also querying the role that Facebook has in relation to liability for content posted by its users.

This case has heightened the media’s push for law reform in this area, and we wait to see whether Parliament will act to change the law of defamation so far as it relates to media organisations that publish content on online platforms where third parties are invited to comment on the content, as well as the operators of the online platforms themselves (such as Facebook).

McCabe Curwood’s Litigation and Dispute Resolution team has significant experience advising and acting for clients in relation to the law of defamation. Please do not hesitate to contact us today if we may be of assistance to you in this area.

Contributors

Nathan Jones
Special Counsel
Jennifer Bradley
Lawyer

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