In a recent landmark defamation case of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller (2021) HCA 27, the High Court of Australia has ruled that Australian media companies are liable for the third-party comments made by Facebook users on their Facebook page.

What does this decision mean?

This recent High Court decision means that all individuals and companies (which include hosts and page administrators of social media pages such as Facebook, Instagram and Twitter) who “facilitate, encourage and thereby assist” the posting of comments by third-party Facebook users are liable for defamation.

The decision is significant because you or your company could be at risk of being sued for defamation if you are posting content likely to induce comment from other people which may be defamatory of an individual.

How can you or your company protect yourself from being sued for social media defamation?

If you are running a company social media page, you should:

• prepare and implement a social media policy for your company which sets out:
  • processes outlining how your company will monitor social media content posted on your page by third-party users; and
  • how you will delete comments on your social media pages if such comments may be defamatory of another person;
• ensure that prior to posting content on your social media pages you have considered what sort of response you might receive from the greater public. If the content you intend to post is controversial and may lead to defamatory comments about an individual being posted, you should carefully think about whether to post the content and if you do, have a clear monitoring plan in place;
• if your company is not in position to closely monitor social media content being posted on your page, you should consider turning off the “comments” tool (noting that comments made to a public Facebook page cannot be entirely disabled); and
• utilise other tools offered by Facebook which allow you to block particular and/or relevant words, turn on a profanity filter or implement other restrictions which may be available to you.

Case Background

An image of a young detainee, Dylan Voller, shackled to a chain wearing a spit hood was exposed in a TV report in 2016.

The alleged mistreatment that had occurred in Darwin’s Don Yale Youth Detention Centre resulted in extensive media coverage, including articles being posted by media outlets on their Facebook pages.

Whilst the alleged mistreatment captured Australia’s attention, these articles posted on Facebook received an abundance of defamatory comments about Dylan Voller by members of the public.

Rather than suing the third parties for their serious allegations, Voller instead sued several media organisations in respect of the alleged defamatory comments posted on their Facebook pages.

The primary decision

In 2019, Dylan Voller brought action in the Supreme Court of New South Wales against Fairfax, Nationwide and Sky News on the basis that they were responsible for the defamatory comments made about him.

Voller was successful, with the Court ruling that the news outlets were liable as “publishers” of their reader’s comments made on their Facebook pages. Justice Rothman found that the media outlets should have anticipated the likelihood of their posts eliciting defamatory comments about Mr Voller.

The NSW Court of Appeal affirmed the decision in June 2020.

The High Court Case

The media organisations appealed to the High Court of Australia to escape liability for defamatory comments made about Mr Voller by members of the public. However, the High Court of Australia agreed with the earlier finding of the NSW Court of Appeal that companies are “publishers” of comments made by third parties on Facebook.

The majority rejected the appellants’ argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it.

In this landmark ruling, the High Court applied a board interpretation to the meaning of “publication” and found that the media outlets posting news content on a public platform will be liable for that content if they have “facilitated, encouraged, and thereby assisted the publication” of the comments. The majority deemed that creating a public Facebook page and posting content on that page was enough to facilitate the publication of comments from third parties hence making the owner of the page liable in defamation as a “publisher”.

This case has not yet decided whether media companies will have the protection of the “innocent dissemination” defence.

You can read the judgement here.

The recent reforms to the Defamation Act (see article here) including the introduction of Section 10A “serious harm threshold” may also affect individual’s ability to sue for defamation when such defamation has only occurred by way of comments on a Facebook page.

Key Message

It is important that anyone who runs a social media page is aware of the risks of being sued for defamation and takes necessary steps to reduce such risks.

Elit Lawyers by McGirr & Snell has over 60 years’ specialised defamation experience acting on behalf of individual and companies including high profile executives, parliamentarians, sporting and public figures.

If you need legal assistance with any aspect of your social media presence or have any other defamation concerns, please contact Danielle Snell and/or Robert McGirr.