The Supreme Court of New South Wales has held that, in relation to defamation liability, media companies are deemed to be the publishers of any comments posted to their public Facebook pages by members of the public. Justice Stephen Rothman’s judgment has implications for any businesses that allow user generated comments on their public Facebook pages (and potentially similar forums such as Twitter or Instagram) as a means of generating subscription or advertising revenue.
The owners of public Facebook accounts will be deemed to be first or primary publishers for the purposes of defamation liability where defamatory comments are posted to those pages by third-party users.
As a first or primary publisher, the defence of innocent dissemination in an action for defamation will be unavailable in circumstances where there is an ability to monitor and approve comments before they are published using Facebook programming tools.
At least one of the defendants has indicated an intention to appeal the decision, having regard to the implications the ruling may have on the industry, and has called for urgent defamation law reform in this area.
In three separate proceedings, the plaintiff, Dylan Voller (a former Northern Territory youth detainee) has sued Fairfax Media, the Australian News Channel (publishers of Sky News) and Nationwide News (the media companies) 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.
At the outset of the proceedings, the Court was asked to decide the following preliminary question:
Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?
In his Honour Justice Rothman’s judgment, of 24 June 2019, the Court answered the preliminary question in the affirmative. Justice Rothman stated that:
Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.
As a result, for the purposes of liability in defamation, the media companies were held to be a first or primary publisher in relation to the general readership of the Facebook pages they operate, and, as a consequence, the defence of innocent dissemination would not be available.
His Honour stated that, in circumstances where an owner of a public Facebook page promotes its material, knowing that, more probably than not, it will result in defamatory material being posted:
a defendant cannot escape the likely consequences of its actions by turning a blind eye to it.
The Voller decision highlights the need for organisations to review how they monitor comments generated by third parties. The Court heard evidence that monitoring tools are available – it comes down to a question of resources.
The response to this judgment involves a costs/risk analysis. Employing Facebook programming tools in order to “hide” comments by third party users so that they can be monitored and approved before being visible to the public will reduce defamation risk, but at a cost.
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