Co-Author by Veronica Gregory (Associate) and Morgan Nunan (Associate)
Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102 (Basten JA, Meagher JA and Simpson AJA)
On appeal from a preliminary question decided by Justice Rothman in Supreme Court of New South Wales defamation proceedings (our earlier article is here), the Court of Appeal has upheld the finding that media companies were publishers of comments posted to their public Facebook pages by third party users.
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 decision may have cushioned the impact of the first instance finding by somewhat leaving the door open for a defence of innocent dissemination and/or the protections under Schedule 5 of the Broadcasting Services Act 1992 (Cth).
- The primary judge was right to find that the plaintiff has established the publication element of the cause of action of defamation against the media company defendants in respect of each of the Facebook comments posted by third-party users.1
- The appeal judges found that the media companies facilitated and encouraged the posting of comments by third parties on articles made available on their public Facebook pages. In doing so, the media companies participated and were instrumental in bringing about publication of allegedly defamatory matter, irrespective of whether others also participated in the publication.2
- The appellate bench reversed findings of the primary judge which had been fatal to a defence of innocent dissemination. Whether the media companies were "first or primary distributors" as opposed to "secondary or subordinate distributors" went beyond the scope of deciding the element of publication.3
- Nine and News Corp are considering a High Court challenge to this decision.
In three separate defamation proceedings, the plaintiff, Dylan Voller (a former Northern Territory youth detainee) has sued Fairfax Media, the Australian News Channel (publishers of Sky News) and Nationwide News for allegedly defamatory "comments" posted on Facebook in connection with articles placed on the Facebook pages of the Sydney Morning Herald, The Australian, Sky News, The Bolt Report and The Centralian Advocate between July 2016 and June 2017.
Justice Rothman was asked to decide a preliminary question:
"Has the plaintiff established the publication element of the cause of action of defamation against the defendants in respect of each of the Facebook comments posted by third-party users?"
Justice Rothman answered that question in the affirmative. Further, his Honour also found that the media companies were "first or primary publishers" of the third party comments on the basis that they had capacity to pre-monitor comments before they were made available. This decision was fatal to any defence of innocent dissemination, which may otherwise allow the media companies to avoid liability until they are made aware of the defamatory content.
The Court of Appeal was asked to determine whether Justice Rothman erred in holding that the defendants were the publishers. The plaintiff conceded that Justice Rothman had otherwise erred by going beyond the scope of the preliminary question and making premature findings on matters other than the publication element of defamation, including the availability of the defence of innocent dissemination.
In dismissing the appeal, Meagher JA and Simpson AJA confirmed that a party who participates and is instrumental in causing publication of defamatory material will be potentially liable for doing so, notwithstanding that others may also have participated in the publication.4
Their honours found that Facebook allows for the composition, comment and publication by third parties without the need for further intervention by page administrators.5 By employing this facility, the media companies intentionally assisted in the process of conveying the words bearing the allegedly defamatory meaning to a third party because they knew that an outcome of operating a public Facebook page was that any third party comment would be published to any Facebook user.6
To the extent the first instance decision went beyond this question, the appeal bench agreed that the primary judge was in error, particularly in circumstances where the defendants were yet to file a defence.7 It was held that the ultimate trial judge in these proceedings cannot be bound by findings of the primary judge that made the defence of innocent dissemination unavailable.8
In agreement with the majority, Basten JA confirmed that the defendants were publishers of third parties' public comments, stating:
"[p]erhaps with a degree of hyperbole, [the defendants] submitted that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author",9 however, "it does not follow that they were not publishers".10
Basten JA also considered an application made by Bauer Media, the Daily Mail and Seven West Media to intervene in the appeal. While the interveners' application was dismissed, his Honour gave passing consideration to clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth). His Honour stated that:
"It would seem to follow that a publication on the internet can only give rise to liability under New South Wales law with respect to defamation if the publisher in Australia was aware of the nature of the particular content."
The use of social media to promote content and generate subscription and advertising revenue is an important facility for many businesses, including media companies. Through engagement with the public on Facebook, posts are rewarded with priority placement on the platform's news feed, allowing companies access to a wider audience.
The Voller appeal highlights the need for organisations to review how they monitor this engagement with the public. This may include pre-emptive measures, to the extent they are available and cost effective. Efficient processes to respond to a complaint and consider removal should be seen as a minimum.
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Originally published Jun 2020
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