Social media posts by third parties

On 8 September 2021, in Fairfax Media Publications Pty Ltd v Dylan Voller; Nationwide News Pty Ltd v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27, the majority of the High Court (HCA) affirmed the decision of the NSW Court of Appeal (NSWCA). The HCA found that the media companies (Appellants) were publishers of defamatory material made by third-parties on social media pages maintained by the Appellants.

Background

Mr Voller (Respondent) brought proceedings in the Supreme Court of New South Wales. He claimed that after the Appellants published to their social media pages news stories about the Respondent, several third-party social media users replied with comments defamatory of the Respondent.

The Respondent alleged that the Appellants were liable as secondary publishers of those social media comments. By consent of the parties, the Supreme Court ordered that the question concerning the issue of publication be decided separately from the balance of the proceedings.

The issue in dispute is whether the Appellants were publishers of the alleged defamatory material that was primarily published by third party social media users on social media pages controlled by the Appellants.

NSWCA decision

The Appellants asserted that in accordance with the meaning of publication given in Webb v Bloch (1928) 41 CLR 331, to be publishers, the Appellants must have been instrumental to, or a participant in, the communication of the alleged defamatory material.

To that end, the Appellants relied on the following arguments to contend that they were each not publishers of the defamatory materials:

• they did not make the defamatory comments available to the public;
• the Appellants did not participate in their publication and were not instrumental in the publication of the alleged defamatory material;
• they merely administered a public Facebook page on which third parties published material;
• the Appellants were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author; and
• in cases that involved claims against occupiers of premises in which unauthorised third parties graffitied the walls of the premises, the occupiers are only liable if after becoming aware of the graffiti, allowed them to remain.

Notwithstanding the Appellants’ reliance on the above arguments, their Honours found that the Appellants were publishers of the alleged defamatory material. The court held so because the Appellants facilitated the making of comments by third parties which then became available to others. The court also found that the Appellants invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might avail themselves of it.

HCA decision

Subsequently in the HCA, the Appellants asserted that the decision of Webb v Bloch requires that the publication of defamatory material be intentional – it is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher, a person must intend to communicate the matter complained of, which is to say the relevant words.

The majority in the HCA rejected the Appellants’ assertion, finding that the Appellants’ argument that the publication must be intentional is unsupported by authority. At paragraph [27], Kiefel CJ, Keane and Gleeson JJ of the HCA stated:

An action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. The intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.

In addition, the rule in Webb v Bloch “is to be understood to say that 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.”

Further, the Appellants’ primary purpose in operating public Facebook pages was to increase readership of the newspaper, or broadcast and to optimise advertising revenue. In doing so, the Appellants encouraged the publication of comments which provided the Appellants commercial benefit. In other words, the Appellants were not “passive and unwitting victims of Facebook’s functionality.”

Takeaways

This decision affirms that persons or entities that operate a social media platform in which defamatory comments are made may be liable as publishers even if they are not the primary publishers of those defamatory publications.

Individuals and businesses that maintain public social media platforms should assess their methods of moderating engagement by the public and comments by third party users. Individuals and businesses should familiarise themselves with the available tools provided by each respective social media platform to effectively moderate engagement with the public.  

In response to this judgment, the Australian Government introduced and read the Social Media (Anti-Trolling) Bill 2021 (Bill) which was intended to address the implications of the decision. The Bill focused on the responsibilities and liability of digital platforms for defamatory content published online.

The Bill was expected to empower Australians by revealing the originators of anonymous defamatory comments on social media. It was intended to do so by providing social media providers access to a conditional defence from defamation liability. That defence would be available if the social media provider complies with the complaints scheme that allows the primary publisher’s contact details to be disclosed with consent or comply with court orders requiring the social media provider to provide contact details.

If the anonymous primary publisher cannot be identified, the provider of the social media service can be considered the publisher of the defamatory material for the purpose of potential defamation proceedings. However, the Bill lapsed at dissolution of the previous parliament.

Our full service practice includes defamation law, from concerns notice to hearings in various jurisdictions and prosecuting claims in respect of both defamation and injurious falsehood.

Contact us if you are seeking legal advice about defamation.