Australia: Defamation and corporate Facebook pages – a company can be deemed the publisher of third-party troll comments

Last Updated: 5 July 2019
Article by Alex Haslam and Ashleigh Allen

The New South Wales Supreme Court recently handed down a decision that has significant implications as to how companies need to manage their Facebook pages so as to avoid potential defamation claims; Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766


In 2016, the ABC's Four Corners programme presented its investigation into the treatment of youths at Northern Territory detention centres. Following the programme and the subsequent Royal Commission into the Protection and Detention of Children in the Northern Territory, Dylan Voller became well known as a result of the treatment he received at the Don Dale Youth Detention Centre.

The investigation and Royal Commission received significant media attention in Australia, with various news outlets and sites covering the stories around it in detail.

In 2016 and 2017, Nationwide News, Fairfax Media and Australian New Channel, posted various news stories on their public Facebook pages regarding the investigation and Royal Commission.

Comments left by members of the public on the Facebook stories and pages were allegedly defamatory against Mr Voller.

Mr Voller commenced defamation proceedings in the NSW Supreme Court against the news companies as operators of the public Facebook pages.

Issues considered by the Court

The preliminary question to be answered was whether each news company was liable for comments left on its public Facebook page.

The Uniform defamation laws in Australia require a plaintiff to establish the following threshold elements for a defamation suit:

  1. the communication has been published by the defendant to a third person;
  2. the communication identifies (or is about) the plaintiff; and
  3. The communication is defamatory.

In this case, the Court was only concerned with the first element. If Mr Voller failed at this first step, the Court would not need to decide elements two and three.

The Court assessed how third party comments are published to the world on a public Facebook page and how a public Facebook page operates. This involved significant expert evidence being led about how Facebook operates generally, how its algorithm may influence the visibility of posts and any tools available to moderators of any particular page to monitor comments left by the public.

For each news company, the Court considered the volume of visitors to its main news website and the percentage of those visitors who were prompted or channelled there by the public Facebook page. Of importance to the Court was the purpose or function of the public Facebook page for each company, which was ultimately to channel users to its main news website to optimise readership and advertising revenue.

The Court received expert evidence about the mechanisms in place to monitor and moderate unsavoury behaviour on the public Facebook page, being to:

  1. Completely block all comments from being made on the page;
  2. Hide comments on the page, either for the purpose of ensuring that only friends of the commentator can read the comments; or
  3. Arrange all comments to be sent to the administrator for review and release, if appropriate.


The Court found that the news companies were each publishers as the administrator of a public Facebook page effectively authorises publication of the comments on each post or story if he/she/it does not monitor or moderate appropriately the publication of comments. The extent of publication of a comment is wholly within the hands of a company that operates a public Facebook page because of the ability to moderate the comments.

The elements of publication were set out by the Court as follows:

  • When a third party comments on a public Facebook page, that is the first time the comment is a comprehensible form to the vast bulk of readers;
  • It is from that publication that the comment is downloaded onto the computer of the person who is gaining access to the public Facebook page;
  • The comment's presence on the public Facebook page allows third party users to gain access, that is, the operation of the Facebook algorithm promoting stories or content to like minded people perpetuates the publication of the comments as the more comments a story gets, the higher it is "bumped" in the Facebook algorithm and therefore shown to more users; and
  • It is the capacity to exercise the final right of approval that renders the distributor or page operator liable for defamation because of publication.


The purpose and nature of the Facebook pages was critical to the Court's decision. In particular, the Court was concerned that news companies were not only operating a Facebook page and providing a forum for discussion, but also encouraging discussion and promoting it for their own commercial gain.

The majority of corporate Facebook pages in Australia will be in operation to promote the relevant business for commercial gain.

For companies operating a public Facebook page, you should immediately consider the ways in which you can monitor or moderate comments to reduce your liability for the behaviour of third party users.

For insurers providing multi-media or defamation cover, it will be benefit to request details of the existence of any public Facebook page and the monitoring processes in place prior to writing any policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions