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Will the legislature bring defamation law regarding publication on social media platforms into the 21st century?

15 September 2021

#Dispute Resolution & Litigation, #Technology, Media & Telecommunications

Published by:

Mina Rassam

Will the legislature bring defamation law regarding publication on social media platforms into the 21st century?

Last week, the High Court confirmed that anyone who hosts or facilitates online or social media content may be held liable for defamatory comments made by third parties.

In the long-running proceedings brought by Dylan Voller (ex-Don Dale Youth Detention Center detainee) against a number of large media organisations, including Fairfax Media Pty Ltd, Nationwide News Pty Ltd and the Australian News Channel Pty Ltd, the Court held that by running Facebook pages, the media groups participated in communicating any defamatory material posted by third parties and were therefore responsible for those comments.

That leaves media organisations and anyone who maintains a website and social media pages vulnerable to a claim in defamation for publication of comments by others on those sites or pages.

It seems that now it is for the legislature to consider whether this orthodox approach to publication is appropriate in the digital age, perhaps during stage two of the review of the Model Defamation Provisions.

High Court findings

Mr Voller commenced proceedings in the Supreme Court of New South Wales in 2019 for allegedly defamatory posts made by third-party Facebook users in response to content posted by the media organisations, being links to stories on their digital news websites, with respect to Mr Voller’s incarceration at Don Dale Youth detention centre. You can read our article regarding the Court of Appeal’s judgement in 2020 here.

The media organisations appealed from the Court of Appeal’s judgment to the High Court, and by a five-two majority, the High Court dismissed the appeal in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27. In so doing, the High Court held that operators of public social media pages are “publishers” of third-party comments posted on their pages and can be liable in defamation, even if they are unaware of those comments.

The appellants contended that to be publishers, the common law requires that the publication of defamatory material be intentional. Merely playing a passive role in the publication process is not enough to be deemed a publisher. However, the High Court disagreed, referring to the common law rule in Webb v Bloch, that any act of participation in the communication of a defamatory matter to a third party is sufficient to make a defendant a publisher. The Court held that a publisher’s liability does not depend on their knowledge of the defamatory material which is being communicated or an intention to communicate it.

In this case, the appellants’ desire to optimise their readership by creating and administering a public Facebook page and posting content on that page facilitated, encouraged and thereby assisted third-party users to comment on each post, rendering them publishers of those comments.

The media groups submitted that the “Comment” function was a standard feature on Facebook which the appellants could not disable (at the time of publication). Therefore they did not know of, and could not have removed, the third party comments.

The Court was unsympathetic to this argument, stating that the “appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality”. In making the posts, the appellants are pursuing their own commercial and financial interests and had to “bear the legal consequences”.

The case will now return to the NSW Supreme Court for a trial on the remaining issues, including whether the comments about Mr Voller were in fact defamatory and if any defences apply.

Implications for social media users

Voller involved large media organisations hosting public Facebook pages that invite comments from users. However, the decision serves as a warning to anyone who posts on social media platforms such Facebook, Twitter, Instagram and LinkedIn, which allow readers to comment, whether or not the material is posted for profit. These individuals should actively monitor the comments section regarding such posts and take them down if they could be construed as defamatory.

Reviewing and deleting any comments may be onerous, not only because administrators will have to self-assess what is considered “defamatory”, but also because of the sheer reach of some of these social media pages. For example, Channel 9 had 1.5 million Facebook followers and Sydney Morning Herald had 230,000 Instagram followers at the time of writing.

Social media platforms have already developed features to restrict or turn off comments entirely. Instagram and Facebook now allow publishers to switch off comments on posts. Twitter allows users to restrict comments. Voller may lead administrators to avoid the risk of defamation proceedings entirely by turning off posts, which invariably limits engagement and genuine dialogue between users and effectively harming free speech. 

Serious harm threshold

A serious harm element in defamation law was introduced in NSW, Victoria and South Australia from 1 July 2021, and requires a party to show that the defamatory material (which has been published) has caused, or is likely to cause, serious harm to the reputation of a person. The onus is on the plaintiff to establish that the harm from the defamatory statement is, or will be, serious.

While administrators of public social media pages will still be considered publishers under Voller, the serious harm threshold may weed out trivial claims from the outset. Administrators are nevertheless advised to take quick action to remove potentially defamatory material from their public forums.

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.

Published by:

Mina Rassam

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