High Court in "Voller" rules media companies liable for defamatory statements made by third party users in Facebook comments section
Summary
Social media forums are potentially liable for defamatory comments posted by third parties, the High Court has held.
In a 5:2 majority, the High Court of Australia (High Court) in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, ruled that media companies had facilitated, encouraged and thereby assisted the posting of comments by third-party Facebook users, and therefore were rendered publishers of those comments. The Court rejected the media companies' arguments that a person must intend to publish the defamatory matter, stating that "any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher".1
The decision has ramifications extending beyond media companies and platforms such as Facebook to any website or social media page where users can make comments or participate in online discussion. Such publishers will be liable for defamatory comments regardless of whether the comment is relevant to the post.
In a landscape where "engagement" measured by "follows", "comments", "likes" and "shares" can lead to increased advertising revenue, there is a tension between leaving the comments section open for greater engagement, and leaving oneself open to liability for a defamation action as a primary publisher. This is a particular risk for less sophisticated operators with limited resources available for policing the comments section to identify and remove such content swiftly and decisively.
Background
The defendant media companies Fairfax Media Publications, Nationwide News Pty Ltd, and Australian News Channel Pty Ltd publish newspapers in NSW, or operate television stations, or both. These companies also maintain Facebook pages on which they publish newspaper articles with an accompanying comment, image and headline, and encourage and facilitate the making of comments by third parties which, when posted on the page, are made available to Facebook users generally.
In late 2016 / early 2017, the media companies posted news items on Facebook concerning the incarceration of Mr Voller in a juvenile justice detention centre in the Northern Territory. Third parties posted comments critical of Mr Voller. At the time, the media companies could not "turn off" the comments section on a Facebook post.
Mr Voller commenced defamation proceedings against the media companies, claiming that particular comments posted by third parties conveyed imputations that were defamatory of him, and that the media companies were liable as publishers of the third party comments.
In the course of the proceedings, the Court ordered that the following question be determined separately from the proceedings:
"Whether [Mr Voller] has established the publication element of the cause of action of defamation against the [media companies] in respect of each of the Facebook comments by third party users"
If a negative answer were given to the above question, the proceedings would be dismissed and it would not be necessary to address the remaining issues (including whether the comments are defamatory and whether any defences apply). The primary judge answered the above question in the affirmative, and each appeal from that decision was dismissed, ultimately by the High Court, in this decision.
The High Court delivered its 5:2 decision in three separate judgments; the majority, comprising Kiefel CJ, Keane and Gleeson JJ; Gordon and Gageler JJ who also dismissed the appeal with separate reasons; and Edelman and Steward JJ, who each published separate reasons allowing the appeal in part.
Key findings
"Publication" under the law of defamation
According to Webb v Bloch [1928] HCA 50 and reconfirmed by Trkulja v Google LLC [2018] HCA 25, the longstanding rule with respect to "publication" is that every intentional participant in a process directed to making matter available for comprehension by a third party is a "publisher" of the matter upon the matter becoming available to be comprehended by the third party.2 Applying that rule it follows that there can be multiple "publishers" for the purposes of defamation, and the majority observed that "it is often persons other than the author who are held liable as the publisher".3
At the core of the media companies' argument was the meaning of the phrase "intentional participant" in this context, which is drawn from one of two texts relied upon in Webb v Bloch, which stated:
without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.4
The media companies contended that the cases concerning the common law defence of innocent dissemination supported a requirement of intention to publish defamatory matter. As such, they contended that "publication" under the law of defamation is dissemination with an element of intention to communicate the defamatory matter. In this regard, the media companies equated their participation as being more closely equivalent to the supplier of paper to a newspaper or the supplier of a computer to an author.
The judgments took different approaches to addressing this contention, as outlined below.
Chief Justice Kiefel, and Justices Keane and Gleeson (dismissing the appeal) observed that in the defamation context, publication is the actionable wrong and it is inconsistent with the common law rule to take into account whether or not the publisher knew of the relevant defamatory matter and intended to convey it.5 Their Honours made clear that the rule for publication has no connection to the intention of the publisher to make the defamatory statements. Further, their Honours distinguished cases in which occupiers became liable for defamatory statements affixed to premises from the present circumstances on the basis that those cases involve a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher.
Justices Gordon and Gageler (dismissing the appeal) interpreted "intentionally" in this context as being directed at an "intention to facilitate, or provide platform for, communication of the allegedly defamatory matter" provided it was "active and voluntary",6 regardless of whether the person knows that the matter contains defamatory content. It follows that the intention rests with the act of publishing, not the content published.
Justice Edelman (allowing the appeal in part), while emphasising that the media companies at that stage could not "turn off" the comments on Facebook, reasoned that a person only manifests an intention to publish if the allegedly defamatory matter is "genuinely a comment on the story" and that there must be a common intention between the subject matter of the post and the comment in question.7 His Honour did not accept that by creating their Facebook pages and posting news stories upon which third-party users could comment, the media companies manifested any intention, nor any common purpose with the author of the comment, to publish words that are entirely unrelated to the posted story; "Such unrelated words would not be in pursuance of, or in response to, the invitation [to comment]".8
Justice Edelman then held that his Honour would allow the appeal in part, by rephrasing the answer to the separate question as follows:
The plaintiff will establish the publication element of the cause of action for defamation against the defendant in respect of each of the Facebook comments by third-party users by establishing that the Facebook comment has a connection to the subject matter posted by the defendant that is more than remote or tenuous.9
Justice Steward (allowing the appeal in part) observed that not every facilitator of a communication or conveyance of defamatory material is necessarily a participant in its publication, using the example of a telephone company not being a publisher by virtue of leasing recording equipment that permitted a person to record defamatory accusations, which could then be heard by third parties by dialling certain telephone numbers. His Honour looked for a causative connection between the media companies' act of posting the article, and the allegedly defamatory comments.
Justice Steward then held that his Honour would allow the appeal in part, by rephrasing the answer to the separate question as follows:
The respondent will establish the publication element of the cause of action of defamation in relation to those third-party comments which had been procured, provoked or conduced by posts made by the appellants on their respective Facebook pages.10
Evident from the above, is the majority's distinction between actively making matter available for comprehension, and having an intention to convey the defamatory matter itself. It is clear from the reasons of the majority that the requirement of an "intentional participation" relates only to a participation in the act of publication, not in the intent of the allegedly defamatory message itself.
Innocent dissemination
Although the separate question did not necessitate an inquiry as to whether defences were available to the media companies, nevertheless they argued that cases which developed the innocent dissemination defence show that publication is dissemination with an element of intention. The media companies also argued that successfully arguing the defence has the effect of negating the publication.
The Court did not accept these arguments, and clarified that the innocent dissemination defence has the effect of excepting a publisher from liability, even though the publication has occurred.
What does this mean for the Voller case?
Proceedings are currently before the Supreme Court of New South Wales. The parties had agreed to the terms of the following question, which the Supreme Court ordered to be decided separately from the balance of the proceedings:
"Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?"
The primary judge, Rothman J, answered this question in the affirmative, resulting in the High Court appeal. The matter will now resume in the Supreme Court.
Implications
The implications of this decision are clear: anyone hosting an internet site (including but not limited to a website, Facebook page, YouTube account, TikTok page) where the general public can post and publish a comment, is at risk of being held liable for defamation as a primary publisher, regardless of whether the defamatory comment is relevant in any way to the content of that internet site.
This risk exists even if the host of the website monitors and polices the comments, including by reviewing all comments before allowing them to be posted. This is because seemingly innocuous statements can be found to be defamatory when read in context. If the host of the website is not familiar with that context, they may deem a defamatory comment unobjectionable and publish it.
For example, a person hosting a website about birds could post an article about a species of bird with readers able to post a comment. By and large, such comments will be relevant to the article about birds. However, if a reader decided that this was the appropriate forum to post defamatory comments about a person, the website host will be liable as a publisher.
Of course, there will be some websites that are exposed to a greater risk of publishing defamatory comments than others. For example, a news website posting about a recent unsolved crime where the main suspect has been identified in the "court of public opinion" as the perpetrator but is ultimately innocent, will likely be publishing scores of potentially defamatory comments.
Since these comments about Mr Voller were made, Facebook has changed its settings to allow greater control over the comments section to provide potential publishers with the ability to take that platform away. However, even if comments are "turned off" on "high risk" content, third party users are likely to simply make those same comments on an unrelated post that has comments enabled.
At this stage, the only path to avoid publishing defamatory third party comments is to disable comments entirely.
However, this may not be the case for much longer, as the review of the Model Defamation Provisions, led by the NSW Government, advances. The review process began in 2018, when the Senate Select Committee on the Future of Public Interest Journalism recommended that the uniform defamation laws be reformed to ensure an "appropriate balance between public interest journalism and protection of individuals from reputational harm".11
The Model Defamation Law Working Party has already completed Stage 1 of the Review of Model Defamation Provisions, delivering a set of amended provisions that commenced on 1 July 2021 in New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory.12 The swathe of reforms follow extensive consultations with media companies, digital platforms and legal bodies, amongst others. Important changes include:
- a new public interest defence;
- a serious harm threshold for defamation claims;
- a single publication rule which stipulates that the limitation period begins from the first publication of alleged defamatory material; and
- clarification of the cap on non-economic damages.
Stage 2 of the review is now underway, with the Stage 2 Discussion Paper focusing on the important issue of the liability of internet intermediaries for defamatory material published online by third-party users, this being the subject of the High Court proceedings, and also whether absolute privilege ought to be extended to reports of illegal and unlawful conduct made to police and statutory investigative bodies, and employers and disciplinary bodies.13
With the deadline for submissions to the Stage 2 Discussion Paper having closed on 19 May 2021, there is hope that media companies and other operators of online content will receive legislative clarity about liability for publication of defamatory comments by third parties soon.
Footnotes
1. Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 at [30] (Voller).
2. See Voller at [30]-[35]; [62]-[66].
3. Voller at [27].
4. Folkard, The Law of Slander and Libel, 5th ed (1891) at 439.
5. Voller at [26].
6. Voller at [66].
7. Voller at [141].
8. Voller at [139].
9. Voller at [144].
10. Voller at [186].
11. Parliament of Australia, Review of defamation law.
12. NSW Government Communities & Justice, Review of Model Defamation Provisions.
[1.] Discussion Paper, Attorneys-General, Review of Model Defamation Provisions - Stage 2.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
