In an action for defamation, does a publisher's liability depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it?

Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021)

Intro:-

The appellants, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, 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 news stories and provide hyperlinks to those stories on their website. They invite comment on the posted content from members of the public who are Facebook users. Comments which are made appear on the Facebook page and are available to be seen by other Facebook users.

2 In each of the three proceedings brought in the Supreme Court of New South Wales, the respondent claimed that following the appellants posting about particular news stories referring to 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 comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.

Facts:-

The appellants each maintain a public Facebook page on terms of use agreed with Facebook. The page is used by each appellant to share content and connect with Facebook users. The page is publicly accessible to users, who are able to view and comment on content posted to that page.

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. Readers are invited, by options which appear under the post, to "Like", "Comment" on or "Share" the post. These options are standard features of a Facebook page. Comments which are made by users appear on the page and are available to be seen by all Facebook users who can see the page.

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, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked. Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to "hide" most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook "friends". 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.

The primary judge found, as might be anticipated, that certain posts would be expected to draw adverse comments about the person who was the subject of the news story. It was not in dispute that the use of a Facebook page encourages and facilitates visits by third-party users to a media outlet's own website. The number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and the revenue from advertising on both the page and the digital newspaper or broadcast.

The appellants' contentions

The appellants now contend that the common law requires that the publication of defamatory matter 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. This is said to follow from what was said by Isaacs J in Webb v Bloch and to accord with the holding in Trkulja v Google LLC, that Google's intentional participation in the communication of the defamatory matter supported a finding of publication.

As mentioned earlier in these reasons, the appellants do not rely on the statutory defence of innocent dissemination as providing an answer to whether they are publishers of the alleged defamatory material. However, they submit that the cases which concern the common law defence of innocent dissemination, commencing with Emmens v Pottle[17], support a requirement of intention to publish defamatory matter. They submit that the cases show that publication is more than mere dissemination. Publication is dissemination with an element of intention.

A focus on the intention of a putative publisher to communicate the matter complained of is also said to explain the cases concerning whether occupiers are publishers of defamatory statements affixed to their premises or structures by unauthorised third parties, the appellants contend. These cases hold that, 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. The question of publication is therefore determined by the courts by drawing an inference that the occupier intends to communicate the matter, the appellants contend. No such deliberate act is present in these appeals which would permit an inference of intention on the part of the appellants to be drawn, it is submitted.

The appellants' contentions are not supported by authority and cannot be accepted.

Issues:-

1) Were the appellants "publishers" of comments by the third-party Facebook users?

2) Is an intention to communicate defamatory matter necessary for appellants to be publishers?

Publication and intention

In the law of defamation, harm is understood to be occasioned to a person's reputation when a defamatory publication is made to a third party. Publication is the actionable wrong. In Dow Jones & Co Inc v Gutnick, 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. Publication may therefore be understood as the process by which a defamatory statement or imputation is conveyed.

In Trkulja v Google LLC, it was said that "[i]n point of principle, the law as to publication is tolerably clear". The judgment of Isaacs J in Webb v Bloch was cited for that proposition. In that case, Isaacs J drew upon texts to identify who may be a publisher. Folkarddescribed the word "published" as a technical term in the law of libel. It is used, he said:-

"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".

Starkie said that all persons who:-

"are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication".

Part of the quotation from Folkard ("has intentionally lent his assistance to its existence for the purpose of being published") is relied on by the appellants as supporting their argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. The argument is inconsistent with the common law rule relating to publication and, as shall be explained, it derives no support from what was said in Webb v Bloch.

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.

The liability of a person as a publisher "depends upon mere communication of the defamatory matter to a third person", Dixon J saidin Lee v Wilson & Mackinnon. No question as to the knowledge or intention of the publisher arises. His Honour said "[t]he communication may be quite unintentional, and the publisher may be unaware of the defamatory matter", but the person communicating the defamatory matter will nevertheless be liable. The exception identified by his Honour was the case of certain booksellers, news vendors and messengers, to which reference will later be made.

The appellants' argument that a person must intend to publish the defamatory matter gains no support from what was said in Trkulja v Google LLC. On an application for summary dismissal of the plaintiff's claim of defamation, the primary judge had held that it was strongly arguable that Google's "intentional participation" in the communication of the alleged defamatory material to users of the Google search engine supported a finding that Google was a publisher.

This Court upheld that finding, but criticised the intermediate appellate court for proceeding to make a determinative finding as to publication. The issue concerning publication required consideration of "the nature and extent of Google's involvement in the compilation and publication of its search engine results", the Court said, and this could not be known with any certainty until after discovery[30]. Adopting the quotation in Webb v Bloch from Folkard, the Court said that "all degrees of participation in the publication" of defamatory matter are publication. Far from supporting the appellants' argument as to intention, Trkulja v Google LLC confirms that the correct meaning of publication, which was given in Webb v Bloch, is that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.

Putting to one side the exception created by the defence of innocent dissemination, the publication rule has always been understood to have a very wide operation. In Crookes v Newton, a decision of the Supreme Court of Canada, Abella J remarked that "the breadth of activity captured by the traditional publication rule is vast". Her Honour gave as an example a case in which a printer's employee, whose only role in a publication was to "clap down" the printing press, was held liable for the libels contained in the publication even though he was unaware of its contents.

Consistently with Trkulja v Google LLC and the publication rule, 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.

Isaacs J in Webb v Bloch may be understood to acknowledge that publication may involve acts of participation other than, and which may precede, the actual physical distribution of the defamatory material. His Honour is not to be understood to say that a person must intend to communicate the material complained of as defamatory in order to be a publisher.

Innocent dissemination

As Ribeiro PJ observed in Oriental Press Group Ltd v Fevaworks Solutions Ltd, "[t]he strictness of the publication rule plainly called for some relaxation". Emmens v Pottle is generally taken as the starting point of what came to be called the common law defence of innocent dissemination, which was developed by the courts to mitigate the harshness of the law relating to publication. Vizetelly v Mudie's Select Library Ltd took up the new "doctrine"[.

Emmens v Pottle concerned persons in the business of selling newspapers. Lord Esher held that although such a person may be prima facie liable as a publisher, if they are able to show that they did not know that the newspaper was likely to contain a libel and their lack of knowledge was not the result of their own negligence they will not be liable for the libel.

Vizetelly involved a circulating library. The "defence" also came to extend to persons who conducted the business of bookseller or messenger. What they had in common was that they were mere distributors or disseminators. They were lesser or subordinate publishers, not primary publishers. The latter could not take advantage of the defence. The defence could be described as one special to distributors.

The views expressed by their Honours should be accepted as the explanation of what a successful "defence" of innocent dissemination achieves. It is not that publication is to be taken not to have occurred. In providing for the defence, the courts are to be understood simply to except from liability a defendant who would otherwise have been liable as a publisher. Such an approach was followed by the Hong Kong Court of Final Appeal in Oriental Press. It accords with the fact that the common law continues to apply the rule of publication for publishers, other than innocent distributors or disseminators, who are not primary publishers.

Byrne v Deane

The other line of cases upon which the appellants rely commences with Byrne v Deane. The appellants seek to draw from cases of this kind that an occupier may become liable as a publisher of a defamatory statement affixed to their premises if it may be inferred that they intended the publication to continue. Such an inference may be drawn where an occupier has consented to, adopted or approved the continuance of the publication.

Cases such as Byrne v Deane do not establish a different rule for publication, one based upon the intention of occupiers, as the appellants contend. They involve the application of the general rule of publication to a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher. The time when the occupier becomes aware of the publication of the material marks the point from which the occupier's conduct or inaction is assessed to determine whether they can be said to have participated in the continuing publication. Cases of this kind are not useful to explain the involvement of others in publications in very different circumstances[69] and are not of assistance in this case.

Conclusion:-

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 appeals should be dismissed with costs