In an address to the National Press Club last week, the Federal Attorney-General, Christian Porter said that under the proposed reforms to Australia’s defamation laws, social media giants such as Facebook and Twitter will be treated in the same way as traditional publishers and broadcasters in the media sphere so as to create a level media playing field.
Mr Porter’s comments were prompted by what he described as a “curious” defamation case in which the NSW Supreme Court found News Corporation, Fairfax Media and Sky News liable to Dylan Voller for defamatory comments posted by other users on the media organisations’ Facebook pages.
The Court’s decision in Voller’s case was primarily based on 3 factors: first, as the defamatory comments appeared on the media companies’ Facebook pages, they had each ‘participated in the publication’; second, because the media companies had posted stories which, the Court said would “more probably than not” result in defamatory material, they had ‘promoted’ the defamatory material and approved its presence and publication on their Facebook pages; and finally, each of the media companies operated a public Facebook page for commercial purposes, and “in doing so, [they] assume the risks that comments made on that page will render [them] liable under various laws”.
Consistent with a long line of legal authorities (in the area of defamation, and in many other contexts), defendants cannot escape the likely consequences of their actions by turning a blind eye to them.
If a person, or media organisation, publishes comment on its social media pages and does not turn its mind as to whether the comment will enliven further defamatory comments by others, then the Court in Voller’s decision says the original publisher is “promoting, ratifying and consenting to the publication of the defamatory material, even though its precise terms may not be known.”
The Court in Voller’s case found the ‘host’ organisation liable for defamatory publications made on its social media pages. It therefore was not strictly a case which involved republication of defamatory material, but the Court determined it upon similar principles of public policy.
Both within and outside of the social media arena, if a person publishes defamatory material which is then repeated (or republished) by another person, the person who made the original publication will be liable for subsequent republications of it, if it is established that they authorised or intended the republication, or that the republication was a natural and probable consequence of the original publication. A person speaking to a journalist is therefore liable for the article which republishes their remarks.
In its decision in in Voller’s case, the NSW Supreme Court effectively found that the media organisations had ‘authorised’ the publication of the defamatory comments by having facilitated their publication without regard to the risk of defamation.
If Mr Porter’s proposal makes its way into the proposed defamation reforms, claimants in these situations will be able to pursue social media companies, such as Facebook and Twitter, as the ultimate hosts of the defamatory material.