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The minefield of moderating comments: High Court decision has major implications for publications on social media

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Recently, the High Court of Australia in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2021] HCA 27, upheld the decision of the NSW Court of Appeal that media and news companies were “publishers” of defamatory third-party comments made on their Facebook pages.

 

Background

In July 2017, Dylan Voller commenced proceedings against Fairfax Media Publications Pty Ltd, National Wide News Pty Ltd and Australian News Channel Pty Ltd seeking damages for allegedly defamatory comments left by members of the public on posts made on the news organisations’ Facebook pages.

To succeed in proceedings against media and news companies rather than the members of the public, Mr Voller had to establish the news organisations were “publishers” of the comments.

In 2019, Justice Rothman of the NSW Supreme Court held the news organisations were liable for the defamatory comments as publishers.  This decision was upheld by the NSW Court of Appeal in June 2020 (see our previous article here)  The decision was then appealed to the High Court of Australia.

 

The High Court’s decision

In a split 5:2 decision, the High Court dismissed the appeal of the news organisations, finding in favour of Mr Voller that they were the “publishers” of the third-party comments on their Facebook pages.

The news organisations argued that they did not make the defamatory comments available to the public, that they did not participate in their publication and were not instrumental to the publication of the comments.  In essence, the news organisations said they merely administered a public Facebook page on which the public could publish material.

The majority of the Court did not accept the news organisations’ argument that they were “passive” or “innocent disseminators” of the comments.  The Court found that, by creating a public Facebook page and posting content with links which allowed users to leave comments, the news organisations had facilitated, encouraged and thereby assisted in the publication of the comments.  This was enough for them to be classified as publishers.

Justices Gageler and Gordon, who were part of the majority stated that:

“[T]he appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality.  Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”

 

Key takeaways

The High Court’s broad interpretation of “publication” in this decision will have wide ramifications for anyone who runs a social media page or posts on social media.  Companies should rethink how they manage engagement of third parties on their social media posts and consider different options for hiding or moderating comments.  CNN has already disabled its Facebook page in Australia and The Guardian announced it had disabled comments on most articles posted to its Australian website.

It is important to note however that the High Court did not determine the substantive issues in the proceedings and the news organisations may still be able to rely on various defences to defamation, including the defence of “innocent dissemination”.  All the High Court has decided is that news organisations have published the material, which is the first of multiple steps before finding them liable for any allegedly defamatory comments.

Recently there has also been significant reforms to the Defamation Acts implemented in NSW, Victoria, South Australia, Queensland and the ACT which may reduce the risk of companies being sued for third-party comments on their social media pages.  Stage 1 of the reform process introduced a serious harm threshold which means a plaintiff must establish they have suffered, or are likely to suffer, serious harm to their reputation because of a defamatory statement.  Stage 2 of the reform process is currently underway and is looking at the liability of publishers in circumstances such as this case, so companies should pay close attention to the process.

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

Contributors

Luke Dominish​
Associate
Emma Jagot​
Graduate Lawyer

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