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.
This judgment raises interesting issues for those operating Facebook pages, other than newspapers. For instance, in the vicinity of our beloved UNE there are two Facebook pages for locals which come to mind. “Thumbs Up, Thumbs Down” is operated by a private individual and invites comments from the public concerning experiences with local businesses in the Armidale area. Either the initial posting could be considered defamatory or a comment made by a reader of that post could be defamatory against the subject business or the person who made the initial posting. Likewise, on “Armidale Crime Prevention and Neighbourhood Watch Community Group” while initial postings have tended to be cautiously worded, responses from readers can at times be less constrained and could at odd times be considered defamatory (and discriminatory). This judgment may now leave the operators of those pages exposed; yet abandoning them would not be in the community’s interest in my opinion.
Other users of Facebook who may now be exposed could be political parties who post articles on Facebook, including those by serving MPs seeking to keep their constituents abreast of local developments or matters within their portfolio if they are a Minister or Shadow Minister. Frequently comments denigrating the politician are made. Of concern however could be others who then respond to an initial response to that article in terms which could be seen as defamatory or discrimination (as to gender, race or religious beliefs). If this judgment curtailed initial political postings it would be a hamper meaningful political discourse and debate.
And then there is the issue of “sharing” an initial posting which would appear take subsequent comments beyond the capacity of the person (or organisation) making initial posting to monitor and remove any defamatory (or discriminatory) comments.
I suspect that there is sufficient in the way of potential flow on effects to warrant the High Court granting special leave to appeal the decision of the Court of Appeal.
I also find it interesting that the media (including this article) is reporting the appeal as upholding the ruling of the judge in the first instance trial.
Although technically, this is correct, I think it misses an important decision in the trial. There were two judgments written in the appeal. Both of them identified that the initial judge was in error (even though technically they upheld his verdict that the media companies were publishers).
At [61], Meagher JA and Simpson AJA state :
‘With the benefit of the exchange of written submissions in this Court the parties agreed, correctly in our view, that the primary judge was in error in dealing with these additional matters and that his observations or findings in doing so were not and could not be binding on them. There remained, with respect to ground 4, a contest as to whether his Honour had found that the publishers of a public Facebook page were able to block or hide all, rather than substantially all, comments posted on that page by third-parties. As Basten JA observes, it is not necessary for this Court to resolve that contest.
What the appeal did, was acknowledge that although they were publishers, the trial judge was in error to deem that they were primary publishers, which needed to be referred back to the ongoing trial to determine. This retains a significant live issue when it comes to establishing the defamation defence at trial.
Particular relevance for SkyNews FB page!
Given Mr. Voller’s claim only addressed the publication of defamatory comments made by third-party users on the defendant’s Facebook pages, do you think there should be greater accountability for the individuals who make these comments?
Tel U