Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

The decision in this case and its appeal is significant for parties who use public Facebook pages and other social media pages to share content. Rothman J found that these parties can be held liable as primary publishers of defamatory content regardless of whether they have received requests to remove content or even put on notice of the allegedly defamatory content.

Dylan Voller is a First Nations man who first came to attention when the ABC’s Four Corners program filmed a documentary about the Don Dale Youth Detention Centre in Darwin. The mistreatment he received while in detention was examined by the Royal Commission into the Protection and Detention of Children in the Northern Territory.

The principle elements for a cause of action of defamation are: (i) the material has been published to a third party; (ii) the material must identify the person; and (iii) an ordinary, reasonable person must consider the material to be defamatory. This case focussed on the publication element.

The Case

Mr Voller brought an action of defamation against Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channel Pty Ltd. He claimed that members of the public were being allowed to post defamatory comments on the defendant’s respective Facebook pages. His claim addressed only the publication of these comments.

The Decision at First Instance

Rothman J found that Voller had established the publication element of the cause of action of defamation against the defendants in respect of each of the Facebook comments made by third-party users.

In making his decision Rothman J considered the balance required between freedom of speech and the free exchange of information and ideas versus a persons’ reputation. But after listening to the witnesses he concluded that the defendant’s public Facebook pages had ‘nothing to do with freedom of speech and everything to do with their own commercial interests’. Witnesses for the defendants clarified that the object of their Facebook page was to have people comment and show interest on their page and through this process optimise the amount of people who may consider subscribing to electronic versions of one of the media publications.

Rothman J’s reasoning focused on the ability of the administrators of each page to monitor the comments made on each of their posts. The defendants had the ability to control the publications of posts. Comments can be hidden or deleted from the page and commentators can be blocked from either accessing or commenting on the page.

Instead of utilising a monitoring system the media companies allowed all comments to be published for the public. They had the ability to hide comments and then either delete or unhide them for public access after they had been reviewed by administrators. They chose not to do this.

Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments. [224]

His Honour explained that this is a situation where it is not the author of the comment who publishes it, it is the administrator of the page.

… if an author of a comment, which is defamatory, were to post that comment on a public Facebook page, publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page. [106]

The defendants appealed Rothman J’s decision.

The Appeal

On 1 June 2020, the New South Wales Court of Appeal handed down the decision of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102. Rothman J’s decision was upheld.

The media companies submitted that they only administered the public Facebook page and that to be considered publishers they had to be an active participant in the communication. They argued they were not active participants but more akin to a supplier of paper to a newspaper owner or the supplier of a computer to an author. The Court of Appeal unanimously rejected their submission.

… a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees. [111]

The media companies have indicated that they will make an application to the High Court for leave against the Court of Appeal’s decision.