Express law No. 299

Background

The appellants were media outlets which posted links on their Facebook pages to their news stories. They invited comment on those posts from Facebook users. The comments appeared on the media outlets’ Facebook pages and could be seen by other Facebook users.

The respondent, Dylan Voller, claimed that comments made by third parties on the media outlets’ Facebook pages were defamatory of him, and that the media outlets were liable as publishers of those comments.

An initial separate question for determination by the Court was whether for the purposes of the law of defamation the media outlets were publishers of the comments by third parties. The NSW Supreme Court¹ and the NSW Court of Appeal² held that the media outlets were publishers of the comments appearing on their Facebook pages. The media outlets appealed to the High Court.

Reasoning

By a 5-2 majority, the High Court dismissed the appeal.

Kiefel CJ, Keane and Gleeson JJ held that ‘a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication’: [32]. Their Honours found that ‘the acts of the [media outlets] in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments’: [55].

Similarly, Gageler and Gordon JJ held that the media outlets ‘intentionally took a platform provided by another entity, Facebook, created and administered a 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. The [media outlets] were thereby publishers of the third-party comments’: [105].

Edelman and Steward JJ dissented. Edelman J held that the media outlets could be liable as publishers if each of the third-party comments ‘has a connection to the subject matter posted by the [media outlet] that is more than remote or tenuous’: [144]. Steward J held that the media outlets could be liable if they ‘procured, provoked or conduced’ the third party comments: [186]. There was ‘substantial overlap’ in their Honours’ approaches: [143].

Although arising in the relatively new context of social media, the decision of the High Court is consistent with established defamation principles by which a person who is not the author of defamatory material can nevertheless be responsible for its communication.

Implications for liability in defamation for social media comments

The High Court’s decision may have wide-ranging implications for the potential liability in defamation of all persons or organisations that post content on social media and invite comment on those posts from third-party users.³ Agencies with a social media presence may wish to consider monitoring comments posted by third parties (with a view to removal of potentially defamatory material) or taking steps to limit third parties’ ability to post comments.

It is important to recognise the limited scope of the High Court’s decision. The Court did not determine liability on a final basis, including whether the media outlets could rely on the ‘innocent dissemination’ defence under the Defamation Act 2005 (NSW). The NSW Supreme Court is likely to determine that issue in due course. The answer to that issue may raise further questions about the extent of an intermediary’s liability under defamation law.

Mr Voller chose to sue only the media outlets and not the authors of the third party comments. Persons who post defamatory comments on social media, or who adopt others’ defamatory comments (for example, by use of ‘likes’) have a potential liability in defamation, subject to available defences. Those persons are publishers for the purposes of the law of defamation and are not relieved of responsibility for the publication simply because the media outlets are also publishers.

Commonwealth agencies generally have policies that make clear that their employees should not make defamatory comments, including on social media.

Responsibility for social media comments in other contexts

A related question is whether persons who post content on social media may be liable under consumer law for false or misleading representations made by third parties in comments on that content.

In the context of consumer law prohibitions of false or misleading representations,⁴ the relevant principles are:

• A statement must be communicated to constitute a representation.⁵
• Where a person passes on a representation made by a third party, the person may be liable as a primary contravener only if, in all the circumstances, they endorsed or adopted the representation.⁶
• A person may be liable as a secondary or ancillary contravener if they fulfil certain statutory⁷ and had knowledge of the essential elements of the contravention.⁸
• A person who publishes an advertisement is not liable for breach of consumer law if they (1) are a person whose business it is to publish or arrange for the publication of advertisements, (2) received the advertisement for publication in the ordinary course of business, and (3) did not know, and had no reason to suspect, that its publication would amount to a contravention.⁹

These principles are somewhat similar to defamation principles concerning publication and the ‘innocent dissemination’ defence. However, the two areas of law serve different objectives and are conceptually distinct.¹⁰ Caution should be exercised in applying principles derived from defamation law – once described as the ‘Galapagos Islands Division of the law of torts’¹¹ – in other contexts.¹²

The text of the decision is available at High Court of Australia, Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27.

 

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¹ Voller v Nationwide News Pty Ltd [2019] NSWSC 766.

² Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700.

³ See the discussion of the broader implications for social media users in Professor David Rolph's article High Court rules media are liable for Facebook comments on their stories, The Conversation (online, 8 September 2021).

⁴ E.g. the prohibition of false or misleading representations contained in s 29 of the Australian Consumer Law, and analogue provisions contained in other Acts.

⁵ Thompson v Riley McKay Pty Ltd (No 2) (1980) 42 FLR 279.

⁶ Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435.

⁷ See e.g. s 224(1)(b)-(f) of the Australian Consumer Law.

⁸ Yorke v Lucas (1985) 158 CLR 661.

⁹ Section 251 of the Australian Consumer Law.

¹⁰ Kylie Pappalardo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40(4) Sydney Law Review 469, 476.

¹¹ Justice David Ipp, ‘Themes in the Law of Torts’ (2007) 81 Australian Law Journal 609, 615.

¹² Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34, 40 [24].