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Are 20th Century defamation laws apposite to regulating social media?

16 June 2020

#Dispute Resolution & Litigation

Susan Goodman

Published by Susan Goodman, Mina Rassam

Are 20th Century defamation laws apposite to regulating social media?

The NSW Court of Appeal has held that parties who maintained public Facebook pages and encouraged and facilitated the making of comments by third parties, which when posted on the page were made available to Facebook users generally, were publishers of the comments.

Mr Dylan Voller, a former detainee, is pursuing various media companies, including The Sydney Morning Herald, The Australian, The Centralian Advocate, Sky News Australia and The Bolt Report for allegedly defamatory posts made by third party users on Facebook pages maintained by those media companies in response to stories the media companies posted about Mr Voller’s incarceration at Don Dale youth detention centre.

On appeal from the primary decision, the Full Court in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 was asked to consider whether the media companies had ‘published’ the defamatory comments. Traditionally, it is not uncommon for parties to be held liable for the publication of defamatory imputations conveyed by material composed by another person, for example where a newspaper publishes a letter to the editor which conveys defamatory imputations. However, in this case the media companies argued that they did not make the defamatory posts available to the public, did not participate in the publication of defamatory posts and were not relevantly “instrumental” in the publication of the defamatory posts. Rather, they administered a public Facebook page on which third parties published material. They submitted that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.

The defendants also sought to distinguish their conduct from the cases in which internet platform providers, which host discussion forums, have been found to be publishers of third party posts. In this case, the defendants argued that they had not played an active role in encouraging and facilitating internet postings on their Facebook page. 

However, whilst the Full Court accepted the media companies may have played no active role in the postings, it did not accept that they were not publishers of the defamatory material. The Full Court determined that these companies facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory. Consequently the Court held that the defendants were publishers of third party posts on their Facebook pages. The Court did not determine whether or not the publications were defamatory of Mr Voller.

The findings of this case place a significant burden on the operators of Facebook pages in circumstances where the Court accepted that:

  • the Facebook platform did not allow a host to prevent all posts on a public Facebook page
  • while deletion of the individual posts or comments was possible and occurred, it did not prevent publication.

The Court noted that Facebook permitted the filtering of posts and that a filter could be designed which would “hide” most, if not all, posts (although there appeared to be some disagreement about whether this was always possible) which prevented publication of such posts which could be assessed for defamatory content.

We understand that special leave to appeal to the High Court from the Court of Appeal’s judgment is likely to be sought. However, in the meantime, media companies and other parties maintaining Facebook pages risk claims for defamation if they do not take steps to avoid defamatory statements being published on those pages by filtering and removing such statements before they are published. 

And this comes at a time when, in the USA, consideration is being given to reducing the legal protections afforded to social media organisations for libel if users post defamatory messages on their platforms, and under which those organisations have flourished.

Authors: Susan Goodman & Mina Rassam

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Susan Goodman

Published by Susan Goodman, Mina Rassam

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