On 8 September 2021, Australia’s High Court dismissed an appeal by three Australian media organisations, finding that they were the publishers of third-party comments on their Facebook pages.   A majority of the Court found that the media companies facilitate, encouraged and thereby assisted the posting of comments by third party Facebook users and that this rendered the media companies publishers of those comments for defamation purposes.  

The finding is significant because it means that the threshold for potential defamation liability is met by the hosts of social media pages in relation to third party comments on those pages even if they have not seen those comments.  Importantly, the Court did not make any finding as to whether or not a defence of innocent dissemination is available to hosts.  The defence is likely to be available to hosts where they are not aware of defamatory comments and the lack of knowledge is not due to any negligence on the host’s part.  Importantly, the Court found that innocent dissemination is a defence and not, as had previously been indicated in some cases, a negation of the element of publication in the case of action.  The question of whether the innocent dissemination defence is available to social media page hosts will be determined in a further stage of the proceeding.

The practical implication of this decision is that hosts of social media pages and other online publishers should consider and manage the risk they may face of defamation liability for third party comments including by having a process in place to promptly consider complaints and take down requests, as well as consider, more extensively, platform features that might assist with risk mitigation strategies, such as disabling comments (to the extent that is possible).

Australian defamation laws currently place online publishers at greater risk of liability than the laws of other comparable jurisdictions such as the US and the UK.  A law reform process is underway to consider changes to Australian laws to address this issue.  Stage 2 of the Review of the Model Defamation Provisions, which is considering whether or not, and to what extent internet intermediaries should be liable for the publications of third parties (See Part A of the Stage 2 Discussion Paper released on 31 March 2021). Specifically, the position of forum hosts is being considered, and the decision will undoubtedly contribute to that reform discussion.

Facts

Each of the applicant media organisations had established pages on the “Facebook” social media platform, on which they provided links to articles published on their own websites.  These Facebook pages were publicly accessible to third party users of Facebook, who were able to view and comment on posted content.  The respondent, Mr Voller, brought proceedings for defamation against each of the media organisations.  The matters Mr Voller complained of included comments posted on each media organisation’s Facebook page by third-party Facebook users.

Mr Voller did not allege that any of the media organisations failed to take steps to remove any defamatory material from its Facebook page once it became aware of the such material. Rather, Mr Voller’s case as to publication was that each of the applicants is a publisher of any third-party comment on its Facebook page, even prior to being aware of the comment, from the moment it is posted by a user and read by another person.

An order was made that a question concerning the issue of “publication”, as agreed by the parties, be decided separately from the balance of the proceedings.  The question was whether or not the media organisations were “publishers” of third-party comments on their Facebook pages, for the purposes of the tort of defamation.  If this threshold question was decided in the negative, Mr Voller would not have a cause of action against the media organisations and the case would effectively be over.

The primary judge answered the threshold question favourably to Mr Voller and that conclusion was affirmed by the Court of Appeal of the Supreme Court of New South Wales.  The media organisations appealed to the High Court.

A majority of the High Court (5:2) found that the media organisation’s appeal should be dismissed with costs.

Consideration

• The High Court published four sets of reasons spanning over 70 pages. Chief Justice Kiefel and Justices Keane and Gleeson gave the plurality opinion, with Justices Gageler and Gordon giving a separate opinion.   In dissent, each of Justice Edelman and Steward gave their own opinions.  While both Justices found that the appeal should be allowed in part, their reasons for reaching that conclusion differed.
• The decision confirms that 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 Court made clear that the intention of the author of defamatory matter is not relevant because the actionable wrong is publication.  It is often persons other than the author who are liable as publisher.  Accordingly, a publisher’s liability does not depend upon their knowledge of defamatory matter which is being communicated or their intention to communicate it: see [27].
• Any act of participation in the communication of defamatory matter to a third party is therefore sufficient to make a defendant a publisher: see [30].  The statement of principle 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. The plurality emphasised that the concept of publication has a very wide operation: see [31]-[32].
• It is important to keep in mind that while this decision clears the way for Mr Voller to continue his defamation case against the news organisations, the decision determined only the threshold question of whether or not the media organisations were publishers.  The decision does not resolve the question of whether or not the media organisations do or do not have available a defence of innocent dissemination.
• By extension, the decision did not determine whether or not the media organisations were subordinate distributors for the purposes of an innocent dissemination defence. While the media organisations were found to be publishers in a general sense, their degree of involvement in the publication of third party material and the actions taken by the media organisations when alerted to the relevant matters complained of, may be relevant later in the proceeding. This is because if and when the media organisations seek to rely on an innocent dissemination defence pursuant to s 32 of the Defamation Act 2005 (NSW), the Court at first instance will separately need to determine whether or not they were the primary distributors of the those third party comments and whether or not they had any capacity to exercise editorial control over the content of those comments (for the purposes of s 32(a) and s 32(b)).  As Edelman J noted (see [128]), s 32 has been pleaded but the only question before the Court concerned the threshold element of publication.  Because of this, the High Court’s decision should not be understood as giving rise to a situation whereby all Facebook page owners will be ultimately liable for any and all comments posted on their pages – the degree of involvement of page owners in the dissemination of that material, on the facts of each relevant case, and the steps taken after notification of the material, will remain relevant to the ultimate determination of liability in defamation for that material.  One of the difficulties for the media organisations was that at the relevant time, Facebook did not allow them to turn off the comments function on their pages.  However, that functionality is now available for public pages.
• Separate to the plurality, in a joint judgment also dismissing the appeal, Gageler J and Gordon J also emphasise the strictness of the common law rule as to publication, ensuring “…that all degrees of intentional participation in the process of publication constitute publication for the purposes of the law of defamation”: see [88].  Justices Gageler and Gordon  observed that the operator of an “electronic bulletin board” (understood to refer to a Facebook page or Facebook post to which comments may be posted),  cannot escape being a publisher of the comments of third parties, and said that the most appropriate analogy is live television or talkback radio, whereby third parties might be invited to participate in the program (by way of example, a caller joins the program and makes unexpected defamatory remarks). This mode of publication is specifically contemplated in s  32(3)(e) of the Defamation Act 2005 (NSW), to the effect that the broadcaster of a live program containing the relevant defamatory matter, in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, is deemed not to be a first or primary distributor for the purposes of s 32. This suggests that these issues may need to be revisited if and when s 32 is considered in the course of the proceeding.
• The High Court’s decision will influence the course of the Stage 2 Review of the Model Defamation Provisions, which is considering whether or not, and to what extent internet intermediaries should be liable for the publications of third parties (See Part A of the Stage 2 Discussion Paper released on 31 March 2021). Specifically, the position of forum hosts is being considered, and the decision will undoubtedly contribute to that reform discussion.