Introduction
Facts
Decision
Comment


Introduction

On 8 September 2021 the High Court handed down an important judgment, which held that administrators of public social media accounts will be treated as the publishers of third-party posts, for defamation purposes, even prior to becoming aware of those posts. This raises the risk level for anyone with a public Facebook page or other social media account that allows third parties to post comments.

While the decision in Fairfax Media Publications Pty Ltd v Dylan Voller [(2021) HCA 27] related to Facebook pages operated by media companies, the High Court's reasoning would apply to anyone operating a public social media account that encourages third parties to post comments. It is not necessarily clear whether this decision would also render the millions of Australians who have private social media accounts as the publishers of comments posted by third-party "friends" and "followers".

Facts

Fairfax v Voller was an appeal of a NSW Court of Appeal decision, which had held that three media companies – Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Chanel Pty Ltd (the news companies) – were publishers (for defamation purposes) of comments posted by third parties on each of their respective Facebook pages.

The news companies posted links on their Facebook pages to articles about Voller and readers responded using the comment function. Voller sued the news companies for defamation, not in respect of the articles themselves, but for comments that he claimed were defamatory. He did not give the news companies any notice of his complaint prior to commencing proceedings.

The parties asked the first-instance court to determine as a separate question whether Voller had established that the news companies were the publishers of the third parties' Facebook comments. If this threshold question had been answered in the negative, the news companies would have sought to have had the case against them dismissed.

The primary judge held that the news companies had published the Facebook comments. This decision was appealed to the NSW Court of Appeal and ultimately to the High Court.

Decision

Were the news companies the publishers of third-party comments on Facebook?
It was not in dispute that intention to publish is an element of a tort of defamation. The question in this case was what was required to show such an intention.

Voller argued that the news companies were liable as publishers of third-party comments on their Facebook pages from the minute the comments were posted and read by another user, regardless of whether they had been made aware of the comments. The argument was based on the common law principle that any degree of participation in the process by which defamatory matter is conveyed to a recipient constitutes a publication of that matter.

The news companies argued that a person could not be said to have intended the publication of comments of which they had no knowledge, at least prior to being made aware of those comments.

The news companies raised a novel argument before the High Court that had not been raised in the lower courts – namely, that the requisite intention to publish must be directed towards communications of the particular matter complained of (in this case, the allegedly defamatory third-party comments). They drew support for this proposition from the decision in the UK High Court case of Bunt v Tilley [(2006) EWHC 407 (QB)]. In that case, which was concerned with the defamation liability of an internet service provider, the Court held that for a person to be held responsible as a publisher, "there must be knowing involvement in the publication of the relevant words".

The news companies also placed reliance on Australian and UK cases in which owners or occupiers of premises on which unauthorised third parties had posted defamatory statements were regarded by courts as the publishers of those statements only if, after becoming aware of them, they allowed them to remain in place.

In a five-two majority, the High Court held that liability as a publisher depends neither on knowledge of the defamatory matter being communicated nor an intention to communicate it, and that the primary judge was correct in finding that the news companies were the publishers of the third-party comments.

In a joint judgment, Chief Justice Keifel and Justices Keane and Gleeson reiterated the principle stated by the High Court in Webb v Bloch [(1928) 41 CLR 331] that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant the publisher thereof. All that is required is a voluntary act of participation in the defamatory matter's communication. The judges held that the relevant Australian and UK case law did not establish a different rule for publication based on the intention of the occupiers, but rather were "an application of the general rule of publication to a particular set of circumstances where a person who has not participated in the primary action of publication may nevertheless become a publisher". The news companies' participation was to be found in their conduct, by "facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users".

Justices Gagler and Gordon agreed that the primary judge was right to conclude that the news companies were publishers of the third-party comments posted on their Facebook pages. They had become publishers by reason of:

  • having created a public Facebook page;
  • having posted content on that page; and
  • "encouraging and facilitating" the publication of comments from third parties.

Gagler and Gordon said that the creation of the Internet – which has led to a "disaggregation" of the publication process – did not warrant a relaxation in the strictness of the common law rule associated with Webb v Bloch.

Dissenting opinion
Justices Edelman and Steward were critical of the "all-or-nothing" approach that the parties had taken to the question of whether the news companies were the publishers of the third-party comments. Edelman and Steward took a more nuanced approach, which would have resulted in the news companies being treated as the publishers only in respect of third-party comments that had a "more than remote or tenuous" connection to the articles to which they were responding (Edelman) or that had been "procured, provoked or conduced by" those articles (Steward).

Edelman noted that the reasoning adopted by the majority judges would lead to a news company that posted a "mundane story about weather patterns" on its Facebook page being treated as the publisher of any third-party comments posted in response to that article that, for instance, called someone a thief. He said that the news companies could not be said to have "manifested an intention" to invite comments that had no connection at all with the posted article's subject matter; the comment button was "not an invitation to third-party users to write any words about anything".

Steward's approach slightly differed; if the content posted by news companies to their Facebook pages was objectively likely to procure or provoke adverse third-party comments, the news companies could be said to have "participated" in the publication of any defamatory comments that are made, and thus could be treated as the publishers of those comments. This is essentially an "ought to have known" standard.

Comment

The reasoning in this case would apply to any public social media account, including Twitter and Instagram, where the account operator has a commercial motivation for encouraging public engagement with their account.

It is not necessarily clear whether the decision raises the risk for private social media accounts, where there is no such commercial motivation for allowing third-party comments or an active encouragement to do so.

However, the commercial drivers in this case did appear to be a factor (at least, for Gagler and Gordon) in determining that the news companies had "encouraged" the posting of third-party comments. There remains uncertainty as to whether participation in the publication process – and thus liability as the publisher – results merely from an individual setting up a Facebook or other social media account and not taking steps to block friends or followers from posting comments in response to the user's posts.

That question has not yet come up in Australia in the context of a private Facebook page.

For further information on this topic please contact Andrew Salgo or Anne Flahvin at Baker McKenzie by telephone (+61 2 9225 0200) or email ([email protected] or [email protected]). The Baker McKenzie website can be accessed at‚Äč www.bakermckenzie.com.