Insights + Resources

June 5, 2020

Watch your wall: Businesses liable for defamatory Facebook comments – NSW Court of Appeal confirms

On 1 June 2020, the NSW Court of Appeal controversially upheld the Supreme Court’s decision that media companies with Facebook pages could be held legally responsible for the defamatory comments made by third party users on their posts. Major Australian media corporations are now considering seeking to appeal this decision to the High Court of Australia, arguing that the decision is completely out of touch with the digital age. Nonetheless, the decision means, at least for now, that businesses must vigilantly moderate the comments on their social media pages.

Introduction

On 25 July 2019, the Supreme Court of NSW found that businesses could be liable for the defamatory comments posted by users on their Facebook pages. This decision was appealed by a number of news corporations, including News Corp, Fairfax Media and Sky News, to the NSW Court of Appeal (together, ‘Media Applicants’).

On 1 June 2020, the Court of Appeal handed down a judgment in favour of the Respondent Dylan Voller in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.

The Media Applicants are now considering a challenge to the High Court of Australia, arguing that the decision showed that ‘Australian defamation law is completely out of step with the realities of publishing in the digital age’ and are calling for ‘urgent law reform’ in defamation law.

Recap of the facts

Dylan Voller gained significant media attention in 2016 when images of the then 17-year-old Indigenous man, strapped to a mechanical restraint chair wearing a spit hood at the Don Dale Youth Detention Centre, were widely circulated 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, now 23, successfully brought a defamation claim against Australian media companies News Corp, Fairfax Media and Sky News with respect to comments made by users on the their public Facebook pages.

Court of Appeal finds businesses publish their subscribers’ Facebook comments

On 1 June 2020, Justices John Basten, Anthony Meagher, and Acting Justice Carolyn Simpson dismissed the Media Applicants’ appeal of the NSW Supreme Court decision.

The primary issue of the appeal was whether the Applicants (the media corporations) published the posts. The tort of defamation is largely regulated by statute in NSW under the Defamation Act 2005 (NSW) (‘Act’). The Act contains no express definition of ‘publication’, so its meaning is ascertained by established principles of common law. Section 4 of the Act states that these principles apply to the internet and forms of electronic communication; consequently, their Honours found that the Act is to be read ‘as embracing publication by means of electronic communication, including the internet.’

Basten J found that the media corporations were deemed ‘publishers’ of the content on the basis of two reasons:

  1. The media outlets encouraged and facilitated the posting of comments on articles published in their newspapers by ‘subscribing’ for public Facebook pages; and
  2. The media outlets had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory.

This meant that the media outlets were deemed to be ‘instrumental’ in ‘bringing about the publication of defamatory matter’.

Basten, Meagher and Simpson JJ consequently found that the media outlets were deemed ‘publishers’ of the alleged defamatory content for the purposes of the Act. The practical effect of characterising media corporations as ‘publishers’ of third-party comments on their Facebook pages means that media corporations may be held liable for defamatory comments made by such third parties.

The Defence of Innocent Dissemination

The Applicants raised the defence of innocent dissemination under of s 32 of the Act. This section distinguishes between ‘primary’ and ‘subordinate’ distributors of defamatory matter. However, their Honours found that innocent dissemination only operates as a defence against liability and not a denial of publication. Their Honours held that the Applicants were first or primary distributors and that accordingly, the defence of innocent dissemination was not available to them.

Federal Broadcasting Legislation

The Applicants also argued that media companies ought to be treated like ‘internet content hosts’ for the purposes of federal broadcasting legislation; if so, the media corporations would not be liable, because cl 91 of the Broadcasting Services Act (Cth) stipulates that a State law that imposes liability on a person who hosts internet content in Australia for defamation will have no effect. However, this argument was dismissed by three judges who noted on technical grounds that it was not raised in the NSW Supreme Court decision. 

The Court has yet to rule whether the actual comments on the page are defamatory or on any compensation for the Respondent that would arise from such a decision.

Potential Impact

After the Court of Appeal judgment was handed down, the Media Applicants made a joint statement stating that the decision:

means the media cannot share any story via Facebook without fear of being sued for comments which they did not publish and have no control over … it also creates the extraordinary situation where every public Facebook page – whether it be held by politicians, businesses or courts – is now liable for third party comments on those pages’.

As highlighted in our previous article, individuals, non-profit groups and corporations employing up to 10 people are capable of suing for defamation in Australia. This means that if comments posted to the Facebook page of a business defames its’ competitor, and the competitor employs fewer than 10 people, the business can be liable for defamation.

Concluding thoughts

In light of the current legal position as confirmed by the NSW Court of Appeal, businesses must vigilantly moderate comments on their social media pages. One risk mitigation approach is to set technological filters that require all comments to be approved before publication. NSW businesses must be aware that lack of knowledge of comments posted to social media is no defence to liability if the comments were sufficiently ‘foreseeable’.

If businesses do not want the burden of monitoring comments or the risk of legal liability, they should entirely rethink their Facebook and other social media comments walls. Social media applications undoubtedly plays a huge role in as public platforms for debate and discussion about issues of importance to Australians.

If the Court of Appeal decision disincentivises media platforms leaving an open comment board for content they publish, then, as many have argued, this may have a chilling effect on communications and freedom of speech in Australia.

The above information is general in nature. If you would like advice about defamation law in Australia and how it applies to your use of social media, please contact us below.

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