Take Caution: Your Company May Be Liable for Third-Party Comments on Social Media

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Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller) on the liability of defamatory social media comments

In a world where technology can often outpace the advancement of law, a significant decision has ruled that social media page owners can be at risk of being liable as a ‘publisher’ for defamatory comments made by third parties on their social media platforms.

In Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller), the High Court of Australia considered whether the owners of social media pages can be considered publishers of defamatory comments made by third parties and individuals on their social media pages. 

In this blog, Partner Alex Moriarty/Partner Sarina Eggers-Stable and Lawyer Madison Smith discuss the Voller decision. 

Key points to remember 

  • You can be held liable as a publisher for any public defamatory comments posted on your social media pages or posts.
  • This decision should prompt individuals and businesses to re-evaluate their practices in managing their social media platforms.

Background

The case originated following media articles about Dylan Voller’s experiences within the Northern Territory juvenile correctional system. Mr Voller’s story initially aired in 2016 on the ABC’s ‘Four Corners’ and generated strong public opinion on his situation. 

Subsequently, articles were published by FairFax Media Publications Pty Ltd, Nationwide News Pty Limited, and Australian News Channel (the Media Companies) that were posted to the Media Companies’ Facebook pages. 

The articles posted by the Media Companies contained stories about Mr Voller, that in themselves were not defamatory; however, the posts attracted numerous third-party comments that were defamatory in nature. 

Mr Voller commenced legal proceedings for defamation against the Media Companies in the New South Wales Supreme Court on the basis that they were liable as ‘publishers’ of the third-party comments.

The New South Wales Supreme Court determined that the question of whether the Media Companies were publishers of the defamatory comments should be determined as a separate question. 

This issue was ruled upon by the Supreme Court and later upheld in the New South Wales Supreme Court of Appeal that the Media Companies could be held liable as publishers of comments made by third parties on the Media Companies Facebook posts. The Media Companies appealed this decision to the High Court of Australia.

Prior to the decision in Voller it has been a long-established principle that parties can be liable for defamatory comments made by others on physical property controlled by them such as walls or noticeboards, if after becoming aware of the defamatory comments, they failed to remove them.

The key distinction in Voller was the application of the exiting principles and how these relate to the nuances of social media platforms in a digital environment. 

The High Court’s decision in Voller

In determining the facts before the court in Voller, the High Court ruled in a 5:2 decision to dismiss the Media Companies appeal and found them be liable as publishers of the third-party Facebook comments.

The High Court made a clear distinction between previous cases that had dealt with the publication of defamatory material on walls or noticeboards, where the defendant had had no part in the publication of the material. 

Their honours, Justices Gageler and Gordon clarified this point by discussing the benefits that the Media Companies derived from allowing third-party members to comment which increases their readership and by these actions “…the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”

In their conclusion Chief Justice Kiefel and Justices Keane and Gleeson stated that the Media Companies actions of “…facilitating, encouraging, and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.” 

The High Court did not accept the Media Companies position that they were passive or innocent disseminators. Rather, the High Court accepted that the Media Companies had taken positive steps to take advantage of the commercial benefits and realities of maintaining a Facebook page to increase their readership and dissemination of their works.

The importance of Voller

The High Court’s decision in Voller has confirmed that entities which have provided the means for defamatory comments to be disseminated online can be held liable as publishers under defamation law. 

This will impact on any business or person that maintains a social media page or publishes a post on social media including platforms such as Facebook, Instagram and Twitter. One can now be held liable as a publisher for any comments that are made on a post or page that you maintain, even if you disagree with the comment or are unaware that such a comment has been published.

Importantly, this decision only relates that whether the owners of the social media pages were liable as publishers and does not expand to whether any defences under the Defamation Act 2005 (NSW) are applicable (defences also exist under other states legislation). This matter will return to the New South Wales Supreme Court to test whether the Media Companies have defences available to offset being considered publishers of defamatory material. An outcome to a case of this nature will provide other social media page owners better clarity of risks associated with an online social media presence and provide clarity on the steps necessary to mitigate this new challenge.

In the interim, if your business maintains a social media presence that allows the publishing of comments on posts, a review of your business’ social media practices and training may be prudent.

Legal advice​

If you or your business is concerned about the potential implications or liabilities arising from your social media or online presence following the Voller decision, you should seek legal advice. Legal Kitz Technology and Intellectual Property Law specialists can assist with ensuring that all your legal obligations are met and that your business interests are protected while maintaining a proactive online presence. Click here to book a FREE consultation with one of our highly experienced solicitors today or contact us at info@legalkitz.com.au or by calling 1300 988 954. 

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