In a decision likely to have far-reaching implications for social media use, the High Court of Australia has found that Facebook page administrators are “publishers” of comments posted by third parties on that page.  The decision is a landmark one for defamation law, as it confirms the application of the traditionally wide concept of “publication” to the online environment. 

The central issue before the Court was whether the Facebook page administrators’ conduct amounted to “publication” for the purposes of defamation. There was no question as to the application of the innocent dissemination defence, nor as to whether the content in question was, in fact, defamatory.


Background

Don Dale Youth Detention Centre is in the Northern Territory. From 2015, it was the subject of an investigation into allegations of abuse, deprivation and punishment of children detainees.  One of those detainees was Dylan Voller, whose treatment in the centre was the subject of extensive media coverage.

News articles referring to Mr Voller’s treatment as a juvenile detainee were posted by three media companies on their publicly available Facebook pages. Third party Facebook users left comments on these posts.  Some comments were allegedly defamatory of Mr Voller. 

In July 2017, Mr Voller commenced defamation proceedings in the Supreme Court of New South Wales against each of the media companies, alleging that they were liable as “publishers” of the allegedly defamatory third-party comments.  

The media companies disputed that claim, on the basis that they did not intentionally participate in the communication of the alleged defamatory matter.  Rather, they were mere passive facilitators.

Early in the proceedings, the parties agreed to refer a preliminary question to the Court to decide: was the “publication” element of the cause of action of defamation established against the media companies? 

In June 2019, the Court answered that question in the affirmative, paving the way for the media companies to potentially be found liable for defamation at trial. 

The New South Wales Court of Appeal unanimously upheld that decision, finding that the media companies’ acts in facilitating and encouraging the posting of comments by third party users rendered them “publishers” of those comments.  The media companies appealed from this decision to the High Court.


High Court decision

In a 5:2 decision, the High Court dismissed the appeal and upheld the findings of the courts below. 

Kiefel CJ, Keane and Gleeson JJ wrote the lead judgment.  Their Honours held that the “publication” rule has always been understood to have a very wide operation.  All that the rule requires is a voluntary act of participation in the communication of defamatory matter.  It does not require knowledge of the defamatory matter communicated or an intention to communicate it.

The media companies’ reliance on the High Court’s earlier decision in Webb v Bloch (1928) 41 CLR 331 for the contrary view was found to be misplaced.  In that case, the court described a “publisher” as a person who “has intentionally lent his assistance” to the publication.  However, Kiefel CJ, Keane and Gleeson JJ clarified that the use of the word “intentionally” was to be understood as meaning “voluntarily”. 

Gageler and Gordon JJ agreed, for much the same reasons, but expanded a little further, stating:

The word “intentionally” … should be understood to be directed at an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter. Enough for participation … is that the participation in the process is active and voluntary. That is irrespective of the degree of active and voluntary participation in the process. And it is irrespective of knowledge or intention on the part of the participant as to the defamatory content of the matter published.

All five majority judges found that the media companies did voluntarily participate in the communication of the allegedly defamatory matter.  By creating their Facebook pages and posting content on them, the media companies encouraged and facilitated the Facebook comments.  That conduct rendered them “publishers” of the comments as well.

Edelman and Steward JJ each wrote separate dissenting judgments and would have allowed the appeal. 


What are the broader implications?

The High Court’s decision is likely to have a significant impact on organisations with a social media presence. That is especially so for news organisations, who benefit commercially from their content generating larger volumes of third-party comments, as well as third-party comments that excite public controversy.  Organisations will need to consider how they manage the increase in defamation risk, whether that be through deploying additional resources to monitor and filter content, and/or through utilising content moderation tools available on Facebook.

While the decision involved Facebook, organisations also now at an increased risk of defamation are those with a presence on popular social media platforms such as Twitter, Instagram and LinkedIn.  Like Facebook, these platforms allow third-party users to post comments on content posted by page hosts.

Importantly, however, the decision does not mean that Facebook (and other social media platform) page administrators will necessarily be liable in defamation for defamatory third-party comments. Rather, it means that they can be liable for those comments.  Whether the comments are, in fact, defamatory and whether the innocent dissemination defence is available are both critical stepping stones to establishing liability.  The High Court’s decision did not address those two issues.


GRT Lawyers’ Glenn Vassallo (Managing Director), Ashley Hill (Director) and Scott Standen (Director) can assist you with any queries in relation to your corporate legal requirements.

This article was written by GRT Senior Associate, Alex Sloan and Associate, Rachel Hendrie.