Publishers Deemed Liable for Defamatory Comments Under Article
The appellants published an article regarding the respondent. Under the article, defamatory comments were made against the respondent. The respondent alleged that the appellants are liable for publishing said comments. The Court, in deciding whether or not the appellants are liable, assessed the intention to communicate defamatory matter.
Facts:
The appellants publish newspapers which circulate in New South Wales or operate television stations, or both. They each maintain a public Facebook page on which they post content relating to their news stories. The use by each appellant of their Facebook page usually involves the posting of a hyperlink to a news story, with a headline, a comment and an image. Clicking on the hyperlink takes the reader to the full story on an appellant's news website.
The respondent claims that due to the appellants' posts regarding him including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with defamatory comments. He alleged that the appellants were liable as the publishers of those comments. The Facebook page used by each appellant is managed by a Page administrator, the person or persons authorised by the appellant to administer it in accordance with Facebook's terms of use. There was evidence before the primary judge, that hidden comments could then be individually assessed by an administrator.
If sufficient staff were allocated to perform this task, comments could be monitored and un-hidden if approved by an administrator.
Issues:
I. Whether or not the appellant are "publishers" of comments.
II. Whether or not the intention to communicate defamatory matter necessary for appellants to be publishers.
Applicable law:
Defamation Act 2005 (NSW) s 6 - states the subject matter of the Act to relate to "the tort of defamation at general law". It provides that the Act "does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)".
Defamation Act 2005 (NSW) s 32 - provides the aspects of the defence of innocent dissemination.
Uniform Civil Procedure Rules 2005 (NSW), r 28.2 - pursuant to which the Supreme Court ordered that the question be decided separately from the balance of the proceedings.
Voller v Nationwide News Pty Ltd [2019] NSWSC 766 - where the primary judge (Rothman J) answered the separate question of whether the respondent, the plaintiff in the proceedings, "has established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users" in the affirmative.
Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 - where each of the appeals from that decision of the Supreme Court of New South Wales was dismissed.
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 - provided that to be publishers, they must have been instrumental to, or a participant in, the communication of the alleged defamatory matter.
Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 [45] - where the appellants argued that they did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication.
Byrne v Deane [1937] 1 KB 818 - involved actions brought against owners or occupiers of premises in which unauthorised third parties affixed defamatory statements on the wall of a premises.
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports - involved actions brought against owners or occupiers of premises in which unauthorised third parties scrawled defamatory statements as graffiti on the walls of a structure.
Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKCFA 47; (2013) 16 HKCFAR 366 - where it was held that internet platform providers which hosted a discussion forum were in a different position from the occupiers referred to in those cases.
Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 - Basten JA accepted that the appellants played no such active role, distinguishing them from the internet platform providers in that case, but nevertheless considered the appellants to be publishers.
Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 at 288 - discussed whether the cases which developed the defence at common law hold that if the defence is made out there is taken to have been no publication by a defendant.
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 at 163 [38] - held that Google's intentional participation in the communication of the defamatory matter supported a finding of publication.
Emmens v Pottle (1885) 16 QBD 354 - support a requirement of intention to publish defamatory matter concerning the common law defence of innocent dissemination.
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [26] - publication was described as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension.
Trkulja v Google LLC[2018] HCA 25; (2018) 263 CLR 149 at 163 [39] - it was said that "[i]n point of principle, the law as to publication is tolerably clear".
Analysis:
The appellants argued that to be publishers, they must have been instrumental to, or a participant in, the communication of the alleged defamatory matter. The appellants submitted that they merely administered a public Facebook page on which third parties published material. The appellants contend that it is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. They submit that publication is dissemination with an element of intention.
To be a publisher, an occupier must have consented to, approved of, adopted or promoted the continued presence of the statements, such that it can be said the occupier accepted responsibility for their presence. However, the appellants' contentions are not supported by authority and cannot be accepted. Intention should be understood to be directed at an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter. It is irrespective of knowledge or intention on the part of the participant as to the defamatory content of the matter published.
Conclusion:
The Court concluded that the Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments. The Court ordered to dismiss the appeal with costs.
Implications:
In Gadgets Now, Media liable for Facebook comments: Australian Court (online at 9 September 2021) [9,13], one implication of this decision, as said by News Corp Australia Executive Chairman Michael Miller in a statement, is that anyone who maintains a public social media page can be liable for comments posted by others on that page even when they are unaware of those comments. Nine, the new owner of the Sydney Morning Herald, stated that Facebook, since the Voller case first started, now allowed publishers to switch off comments on stories.
In Johnson Winter & Slattery, Your Corporate Facebook Page: Liability for Third-Party Comments Confirmed (online at 9 September 2021)[2,20-21] it was provided that the key concern for any businesses operating public Facebook pages (and potentially similar forums such as Twitter or Instagram) is that the decision confirms the exposure that comes with comments posted by third party users. The appeal highlights the need for websites to assess monitoring and pre-emptive mechanisms which are both cost-effective and efficient to respond to complaints.
In ABC News, Australian Court Rules Media Liable for Facebook Comments (online at 9 September 2021)[9,13] Michael Miller said that the ruling highlights the need for urgent legislative reform and Australia’s attorneys general to address this anomaly and harmonize Australian law with comparable Western democracies. One of Voller's lawyers noted that the ruling is a historic step forward in achieving justice for Dylan and also in protecting people, especially those in a vulnerable position, from being the target of unremitting attacks on social media.
