A decision in the Supreme Court of New South Wales has paved the way for businesses to be held responsible for publishing defamatory comments by users on their Facebook pages.
Dylan Voller first gained significant media attention in 2016 when images of the then-17-year-old Aboriginal man, strapped to a mechanical restraint chair wearing a spit hood at the Don Dale Youth Detention Centre, were circulated widely, including on various social media platforms. The disturbing images later sparked the Royal Commission into the Protection and Detention of Children in the Northern Territory.
Voller also successfully brought a defamation claim against Australian media companies News Corp, Fairfax Media and Sky News with respect to comments made by users on related posts on the media companies’ public Facebook pages. [1]
In its judgment dated 24 June 2019, the Supreme Court of New South Wales accepted Voller’s case that by failing to delete or filter defamatory comments made by third parties, the companies were effectively publishing that content themselves and were therefore liable for defamation and consequential damages.
The central issue of the case was whether the comments were published by the authors of the comments or the media companies. This centred on the issue of whether Facebook pages should be considered:
(i) Public forums where authors self-publish their comments without intermediation, or alternatively,
(ii) closed publications where authors submit their comments to the administrator to be considered for publishing.
Ultimately the Court found in favour of (ii), as Facebook provides owners of business pages editorial controls, including the functionality to moderate comments. In this case it was not material whether page owners actually performed any active monitoring or moderation of comments, they were deemed to have this degree of “publishing control” over the comments provided that the comments were sufficiently “foreseeable”.
Additionally, the media companies were not able to rely on the defence of innocent dissemination pursuant to section 32 of the Defamation Act 2005 (NSW). This is a defence which may be relied upon by subordinate publishers if it is shown they were not aware that the disseminated content contained defamatory comments.Due to the media companies’ control over the content of their Facebook pages, the Court held it was acceptable to categorise them as primary publishes rather than subordinate publishers that may seek to rely on the section 32 defence.
Importantly, this is not new law; it is law applied to a digital age of ubiquitous and increasingly sophisticated media platforms. The case of Byrne v Deane [2] established that intermediaries may be held liable for hosting or publishing defamatory statements made by others. In that case, a defamatory statement pinned to a notice board by a member of a golf club was held to constitute defamation, not by the member that posted it, but by the club let it stay up on the noticeboard.
On the issue of whether the media companies had actual knowledge of the comments, the court drew on principles from Byrne v Deane in finding that turning a blind eye to the “thoroughly predictable” circumstance of defamatory comments was no excuse to liability.
This may not, however, be law for long. The Digital Industry Group of Australia argues that it is an impossible task for companies to monitor social media pages that process content from millions of people a day. The Voller decision has sparked calls for legislative reform to lighten the burden on businesses running Facebook pages and encouraging the transfer of responsibility to the authors of the comments. In addition, the media outlets have not yet exhausted all avenues for appeal. It is not currently known whether the media companies will appeal the Court’s decision regarding the innocent dissemination defence considering the classification categories of subordinate and primary publishers remains relatively untested in Australia.
The Voller decision is the most recent in a string of high-profile defamation cases that have led some commentators to dub Sydney as “the defamation capital of the world” [3]. In Australia individuals, non-profit groups and corporations of up to 10 people are all capable of suing for defamation. This means that if comments are posted to the Facebook page of your business defaming a competitor, and your competitor employs fewer than 10 people, you could be liable for defamation.
The Voller case is a warning for businesses to vigilantly moderate comments on their social media pages. One approach to help derisk is to set strict filters that require all comments to be approved before publication. Businesses should remember that lack of knowledge of comments posted to social media is no defence to liability, so long as the comments were sufficiently “foreseeable”.
Alternatively, businesses that do not want the burden of monitoring comments or the risk of legal liability may want to rethink that public comments wall entirely. Until the law changes in this regard, the value of interaction with users and potential customers may just not be worth the possibility of being a defendant in defamation litigation.
The above information is general in nature. If you would to learn more about defamation law in Australia and how it applies to social media, please contact us below.
[1] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766
[2] Bryne v Deane [1937] 1 KB 818
[3] Louisa Lim, ‘How Australia Became the Defamation Capital of the World’ The New York Times (5 March 2019) <https://www.nytimes.com/2019/03/05/opinion/australia-defamation-laws.html>.
