On 8 September 2021, the High Court brought down a defamation decision of very considerable significance – even to tax practitioners. It found that the host of a Facebook page, could be liable for defamatory comments made, by a third party, in response to a news article they had published. The basis was that they had ‘facilitated’ its publication, without knowing about the comment, much less intending that it be communicated. This has nothing to do with tax, except that it is, I think, something we all ought know about. Many of us post articles on social media platforms that allow third party comments (and, indeed, maybe they don’t even allow the ‘comments’ function to be disabled). The following article gives a good coverage of the background and the basis for the decision. Read to the end for examples given by the dissenting judges and the retort for the victim of the defamation. See also the related TT article on the decision, itself.
See below for details.
Media outlets lose liability fight over Facebook comments
Australian Financial Review article by Michael Pelly
The High Court has given the green light to Northern Territory youth detainee Dylan Voller to sue media outlets for defamation over comments on their Facebook pages under stories about his alleged mistreatment.
The court decided 5-2 on Wednesday that the outlets, including Nine, should be treated as having published the comments.
Mr Voller was a central figure in the ABC Four Corners program of 2016 on the Don Dale Youth Detention Centre in Darwin, with images of him being restrained in a chair helping to prompt a royal commission.
A statement issued by the court said “the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, ‘participated’ in the communication of the defamatory matter to a third person.
“The majority rejected the appellants’ argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it.
“Each appellant, by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users.”
Mr Voller, now 24, has launched defamation claims against The Sydney Morning Herald – owned by Nine, the publisher of The Australian Financial Review – The Australian and other media outlets such as The Bolt Report on Sky News, over comments by Facebook users that the claims were defamatory.
Broad implications
The case was put on hold pending argument about the publishers’ liability. The NSW Court of Appeal ruled in favour of Mr Voller in 2020. With the High Court affirming that decision, it can now proceed to trial.
The court heard the case has broad implications for anyone who runs a Facebook page, including community groups.
A spokesman for Nine said it was “obviously disappointed” and that it hoped phase two of the national review of defamation laws would deal with the issue.
“It will have ramifications for what we can post on social media in the future,” the spokesman said. “We are hopeful that stage two of the Review of the Model Defamation Provisions will take account of the High Court’s decision and the consequences of that for publishers.”
The High Court said it did not matter that the outlets were obliged to have a comments section under their agreements with Facebook. It said that, by posting on Facebook, news outlets knew they were inviting comments – and likes and dislikes – under the terms set down by Facebook at the time, which they could have moderated in real time.
Act of participation
Facebook has since changed its policy to allow for the comment facility to be disabled, a point welcomed by Nine.
The lead judgment of Chief Justice Susan Kiefel, Justice Patrick Keane and Justice Jacqueline Gleeson noted that the Facebook users followed a link to a story on the publishers’ websites. They also said the comments could have been hidden until they were assessed by a moderator.
They said that “any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher”.
“All that is required is a voluntary act of participation in its communication.”
They said an intention to publish – and therefore defame – was not relevant, meaning that “a person who has not participated in the primary act of publication may nevertheless become a publisher”.
”The time when the occupier becomes aware of the publication of the material marks the point from which the occupier’s conduct or inaction is assessed to determine whether they can be said to have participated in the continuing publication.”
In their joint judgment, Justices Stephen Gageler and Michelle Gordon said each outlet “intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page”.
“The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties.”
Justice James Edelman and Justice Simon Steward dissented. The former noted that Facebook did not allow, at the time, any disabling of an automatic option to comment on the publicly posted and hyperlinked news story.
“Suppose that Nationwide News [publisher of The Australian] published a link on its Facebook page to a mundane story about weather patterns and that a reader posted, in the space reserved for “comments” on the story, a defamatory remark that a particular named person was a thief.
“The remark was entirely unrelated to the weather story. Suppose, also, that at the time the remark was posted, Nationwide News had no knowledge of the remark, little or no ability to prevent it being made, and a system that would remove the remark as soon as Nationwide News became aware of it.
“It can be accepted that, in the circumstances of this case, Nationwide News intended that readers publish comments concerning the story it posted. But, in my respectful view, there is no meaningful sense in which it could be concluded that Nationwide News intended to publish remarks that were not, in any imaginable sense, a ‘comment’ on the story.
“The remark described above would bear no more resemblance to invited ‘comments’ on the posted story than defamatory graffiti on a commercial noticeboard would bear to invited notices on the commercial noticeboard. Neither satisfies the required intention for publication.
“Equally, the remark above would be no more an intended publication than a television broadcast which accidentally captures in the background an unknown stranger who, unbeknownst to the live presenter and camera operator, walks past wearing a T-shirt with a defamatory message or carrying a defamatory placard.”
Mr Voller’s lawyers, O’Brien Criminal & Civil Solicitors, said in a statement that the court had handed down a “commonsense decision”.
“It is commonly known that media companies encourage increased engagement on their posts so that their content is seen by a larger audience…
“They did everything they could to encourage the same and it is disingenuous of them to say they played no role in publication of the same.”
Michael Pelly is the legal editor, based in the AFR Sydney newsroom. He has been a senior adviser to federal and state attorneys-general and written two books, one a biography of former High Court Chief Justice Murray Gleeson.
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