This decision has far-reaching ramifications for how social media engagement will operate in Australia. The broad definition of 'publication' that was adopted by the majority of the Court means that all hosts of pages or individual posts, who 'facilitate, encourage and thereby assist' the posting of comments by the third-party Facebook users, are liable for those comments. Consequently, they are at risk of being sued for defamation.

Background to the Voller decision

Dylan Voller is suing Fairfax Media Publications Pty Ltd (now Nine), Nationwide News Pty Ltd (News Corp Australia) and Australian News Channel Pty Ltd (the owner of Sky News) for allegedly defamatory comments left by members of the public on posts generated by the media organisations on their Facebook pages. The posts were stories related to the treatment of Mr Voller, a young Aboriginal man, at Don Dale Youth Detention Centre in the Northern Territory.

The media organisations argued that they could not be sued in relation to the comments as they were not the 'publisher', in the requisite sense. The parties agreed the issue of publication should be decided as a preliminary question.

In 2019, the NSW Supreme Court held that the media companies could be considered publishers of third party comments on their public Facebook pages. Therefore they can be held liable in defamation where those comments are defamatory.

The NSW Court of Appeal affirmed the decision in June 2020. The media companies then challenged that decision in the High Court.

The majority of the High Court concluded that the Court of Appeal was correct in deciding that that the acts of the media companies "in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments."

The case now returns to the Supreme Court of NSW, where arguments will be heard on whether the comments are defamatory and if so, whether the media companies can defend against it.

Implications of the High Court decision

The High Court's decision affects anyone who runs a social media page or who publishes a post on social media. The High Court's interpretation of what 'publication' means is broad enough to apply to all hosts of pages across Facebook, Instagram, Twitter and other social media platforms. The majority deemed that 'the creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties'.

For reference, the general test of what is defamatory is that it lowers the person in the estimation of others. However, there are other aspects to defamation law to consider alongside these issues.

This case has not yet decided whether the media companies will have the protection of the 'innocent dissemination' defence. Invoking this defence allows one to argue they are merely a 'subordinate distributor' of the defamatory matter as they were not the author or primary distributor and nor did they have any capacity to exercise editorial control over the content. However, it requires that the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory and that the lack of knowledge was not due to any negligence on the part of the defendant. This may turn on whether a page administrator was taking proper steps to monitor comments and remove any potentially defamatory content.

Since this case began, there have also been reforms to the Defamation Act, which have been implemented in NSW, Victoria, South Australia, Queensland and the ACT.

These reforms introduced a 'serious harm' threshold for the ability to sue for defamation. What constitutes 'serious harm' to a person's reputation has not yet been tested in the courts, but may provide a barrier for people to sue for Facebook comments alone.

Stage 2 of reforms to the Defamation Act are currently being considered and could further update the law to more accurately reflect the realities of the online world.

Practical tips to reduce the risk

It is important for those with a social media presence to turn their minds to how to reduce the risk of being sued for defamation.

It is advisable that companies draft a policy of how to manage social media engagement.

For instance, many media organisations now have dedicated moderators who monitor posts, allowing people to comment but deleting any statements that may be defamatory. When they are no longer able to moderate, they turn the comments off and leave a comment notifying the public and providing a link to their policy.

The risk of being sued is heightened where you are posting controversial content that encourages members of the public to make derogatory or defamatory remarks about an individual. The comments on these kinds of posts must be fastidiously monitored.

Facebook now has many tools for page administrators to utilise, including blocking keywords, turning on a profanity filter, and turning comments off altogether. Twitter also allows you to restrict who can reply to your tweet, with options to limit it to the accounts you follow or the people you mention. You can also 'hide replies'. Instagram's algorithm strives to automatically filter and hide offensive comments and also allows you to create a 'custom word list' which can include phrases and would automatically hide the comments where they appear. You can also 'turn off commenting' on individual Instagram posts.

Page administrators should consider how they may employ the available tools across social media platforms, and execute a policy with a consistent approach.

Defamation law is clouded with grey areas, but what is now clear is that the concept of who is a 'publisher' is broad and encompasses those that are facilitating comments being left on their social media posts and pages.

In order to reduce your risk of being sued for the defamatory remarks left in the comment section, one must now monitor, moderate and hit 'delete' on potentially defamatory comments.

We can help you understand how to manage the risk to your organisation.