Media outlets held to be ‘publishers’ of Facebook comments
With social media platforms dominating the way we interact and express our views, it becomes increasingly important for media outlets to be vigilant as to what is being posted on their platforms. A recent High Court decision has found that owners of social media pages are considered ‘publishers’ of comments made on their Facebook pages by third parties.
In July 2017, Mr Dylan Voller (Mr Voller) commenced defamation proceedings in the Supreme Court of New South Wales against Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd (collectively referred to as the media companies).
The proceedings arose out of allegedly defamatory comments made by third parties on articles posted on the media companies’ Facebook pages.
The decision at trial
The primary judge, Justice Rotham, considered the question of whether Mr Voller had "established the publication element of the cause of action of defamation against the [media companies] in respect of each of the Facebook comments by third-party users".
Justice Rotham ultimately decided that Mr Voller had established the publication element of the cause of action, finding that the media companies “facilitated the posting of comments on articles published in their newspapers" and could not "escape the likely consequences of its action by turning a blind eye to it”.
The High Court appeal
Following Justice Rotham’s initial decision and dismissal of the media companies’ subsequent appeals to the Court of Appeal, the media companies were granted special leave to appeal to the High Court.
By a 5:2 majority, the High Court dismissed the media companies’ appeals with costs. In doing so, the High Court rejected the contention that, to be a publisher, the media companies must have knowledge of the allegedly defamatory matter and intend to convey it.
Chief Justice Kiefel, together with Justices Keane and Gleeson stated that, “the Court of Appeal was correct to hold that the acts of the [media companies] in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments”.
Justices Gageler and Gordon, also in the majority, stated that, “The [media companies] chose to operate public Facebook pages in order to engage commercially with that significant segment of the population… The [media companies’] attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences”.
The decision emphasises the need for owners of social media pages – whether they be media companies or otherwise – to have appropriate mechanisms in place to monitor and control the ability of third parties to post content on their pages. It is hoped that the scope of this obligation will be clarified in due course, noting NSW is currently undertaking a review of national defamation laws to examine the extent to which platforms such as search engines and social media sites should be liable for reputation-damaging material published online. However, unless or until such time as there is legislative reform in this area, we encourage all those who permit third parties to post content on their pages to review their risk management framework.