The Voller Appeal: High Court confirms liability for third party Facebook comments

Fairfax Media Publications Pty Ltd v Dylan Voller; Nationwide News Pty Limited v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27

By majority, the High Court has dismissed appeals from the New South Wales Court of Appeal (our earlier article is here), upholding a finding that, in respect of defamation liability, the appellant media companies are publishers of comments posted to their public Facebook pages by third party users.

The decision confirms that there may be exposure for any businesses operating public Facebook pages (and potentially similar forums such as Twitter or Instagram) due to comments posted by third party users, irrespective of intention or knowledge.

Key findings

• The primary judge and the Court of Appeal were right to find that the plaintiff has established the publication element of the cause of action of defamation against the media defendants in respect of each of the Facebook comments posted by third-party users.[1]
• The majority found against the media appellants’ contention that publication of defamatory matter must be intentional.[2] It was held that a publisher’s liability does not depend on knowledge of the defamatory matter being communicated or their intention to communicate it.[3]

Background

In three separate defamation proceedings, the plaintiff, Dylan Voller (a former Northern Territory youth detainee) sued Fairfax Media, the Australian News Channel (publishers of Sky News) and Nationwide News[4] for allegedly defamatory comments posted on Facebook in reply to articles placed on the Facebook pages of the Sydney Morning Herald, The Australian, Sky News, The Bolt Report and The Centralian Advocate between July 2016 and June 2017.

The primary judge, Justice Rothman, was asked to decide a preliminary question:

“Has the plaintiff established the publication element of the cause of action of defamation against the defendants in respect of each of the Facebook comments posted by third-party users?”

Justice Rothman answered that question in the affirmative. The Court of Appeal dismissed each of the appeals from that decision.

The media companies were granted special leave to appeal to the High Court in December 2020.  

Outcome

A High Court majority, comprising Kiefel CJ, Keane and Gleeson JJ and (in a separate joint judgment) Gageler and Gordon JJ, dismissed the appeals with costs.

Kiefel CJ, Keane and Gleeson JJ rejected the appellants’ contention that publication of defamatory matter must be intentional, finding this unsupported by authority.[5] It was held that a publisher’s liability does not depend on knowledge of the defamatory matter being communicated or an intention to communicate it.[6]

Instead, their Honours applied the rule in Webb v Bloch strictly, stating: “Webb v Bloch is to be understood to say 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.”[7]

In support of the findings of the primary judge that the primary purpose of the media companies’ public Facebook pages was to optimise readership and advertising revenue, Gageler and Gordon JJ stated that:

“…the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”[8]

Gageler and Gordon JJ agreed with the findings of Kiefel CJ, Keane and Gleeson JJ. Their Honours added that it is enough to satisfy “participation” in publication if it is active and voluntary.[9]

"In sum, each appellant 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. The appellants were thereby publishers of the third-party comments."[10]

The majority also indicated that where a successful “defence” of innocent dissemination is established, it does not have the effect that publication is taken not to have occurred, but simply excepts a defendant from liability where they would otherwise have been liable as a publisher.[11]

In separate nuanced dissent judgments, Edelman and Steward JJ found that they would have allowed the appeals in part. Their Honours found that publication would be established against the media appellants where the Facebook comment had more than a “remote or tenuous” connection to the subject matter posted by the media appellants[12] or had been “procured, provoked, or conducted” by posts made by the media appellants.[13]

Implications

The use of social media to promote content and generate subscription and advertising revenue is an important facility for many businesses, including media companies. Facebook posts that cause engagement with the public are rewarded with priority placement on the platform's news feed, allowing access to a wider audience.

The Voller decisions highlight the need for organisations to review how they monitor this engagement with the public. This may include pre-emptive measures, to the extent they are available and cost effective. Since the posts in Voller, Facebook has introduced options that provide greater controls to page administrators. Efficient processes for removing content upon complaint will likely be most critical.

In general terms, this judgment is the culmination of an extended litigation of a separate question relating to material which was published as long as five years ago. Defences, including potential defences of innocent dissemination, are yet to be considered. Whilst a decision in favour of the media companies (at any stage) would have ended the dispute, this experience is likely to reinforce judicial reluctance to entertain separate determinations which can prolong proceedings and add to cost.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).