25 May 2021
Under new measures introduced by Facebook in March this year, media and news companies will now be able to control and restrict who can comment on the public posts they publish on their own Facebook pages.
This move by Facebook comes after a 2019 landmark court ruling in Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766 (Voller) which found media and news companies could be liable for defamatory comments posted by third-party users on the companies’ public Facebook pages.
What happened in Voller?
In July 2017, Dylan Voller, a former Northern Territory youth detainee, brought legal proceedings in the Supreme Court of NSW against three media companies, Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australasian News Channel Pty Ltd (the defendants), for allegedly defamatory posts made by third-party users on Facebook pages operated by the defendants.
In reaching its decision, the NSW Supreme Court deemed the defendants to be “first or primary publishers” of the content on their public Facebook pages, including third-party comments, because they “facilitated the posting of comments on articles published in their newspapers” by setting up public Facebook pages. Essentially, the finding was that administrators could be held liable for defamatory comments posted on their public Facebook pages, as “primary publishers”.
The case was subsequently appealed to the NSW Court of Appeal.
What was the appeal decision?
In a decision on 1 June 2020, the NSW Court of Appeal in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102 upheld the finding that media and news companies are "publishers” of defamatory Facebook comments made by third-party users on Facebook pages maintained by those companies.
In determining whether media and news companies had ‘published’ the defamatory comments, the Court of Appeal highlighted the fact that each defendant had created an “official” Facebook page and they each posted content on the page which encouraged and invited third-party users to “Like” or “Comment” on the posts. In the Court’s view, these actions demonstrated a sufficient degree of participation to satisfy the element of publication.
What is Facebook doing now?
In light of the ruling by the NSW courts, Facebook has introduced new tools to allow users to control and restrict who can comment on posts made by those users.
While these new tools will allow every Facebook user to exert more control over posts on their profiles, these changes will most likely have the greatest impact on media and news companies, as well as businesses that operate public pages, which have struggled to control comments on posts made on their Facebook pages.
In particular, media and news companies can now select who is allowed to comment on posts made by them from the following comment audience options: “public (everyone)”, “friends”, or “profile and pages you mention”. If a person views a post and doesn’t belong to the selected comment audience, they will not be able to see the comment button below the post.
However, Facebook has stopped short of allowing public Facebook page owners such as media and news companies to moderate third-party comments before publication.
As such, media and news companies will still need to monitor and moderate third-party comments on their public posts that are potentially defamatory as soon as they become aware of them, to mitigate legal risks.
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 article is accurate at the date it is received or that it will continue to be accurate in the future.