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On 8 September 2021 the High Court of Australia handed down its judgment in the defamation claim brought by Dylan Voller against Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channels Pty Ltd (“the Media Companies”).  In a 5 to 2 decision the High Court dismissed the Media Companies appeal and in doing so found that a company or individual can be liable for defamation for comments made by third parties to their social media posts.

As with all legal matters the devil is in the detail.  The question of whether this decision will open the flood gate, for defamation cases to be bought across the country or whether it will be limited to the circumstances of this case is yet to be seen.  One thing is clear though the High Court placed a lot of reliance on a 1928 High Court judgement, to make a decision about the modern phenomenon of social media posting.  This may require legislative intervention to ensure communication on social media is not overly stifled.

BACKGROUND

The Plaintiff Dylan Voller, was a detainee of the Don Dale Youth Detention Centre.  In July 2016 a Four Corners program played graphic footage of Mr Voller being restrained in a chair and subjected to inappropriate treatment by a guard in the detention centre.  Then between 2016 and 2017 the Media Companies published several articles concerning Mr Voller in hard copy and online.  The online articles were uploaded to Facebook pages owned and operated by each of the respective Media Companies.

Members of the public then commented on these articles using the functionality of the Facebook platform. A case was commenced by Mr Voller’s lawyers that those comments were published by Nationwide News, Fairfax Media and Australian News Channel.  This was even though the Media Companies were not the makers of the comment and had no connection to the makers of those comments.  The comments were made by independent third parties.  The initial decisions handed down in the New South Wales Supreme Court in 2019 found in Mr Voller’s favour that the Media Companies were the publishers of the third-party comments, that decision was upheld (that is followed or agreed with) by the New South Wales Court of Appeal in 2020 and on 8 September 2021 in a majority of 5 to 2 the High Court of Australia also agreed with that decision and dismissed the Media Companies’ appeal of the decision.

This has paved the way to potentially open the floodgates for defamation cases to be brought in Australia.  Posts on social media platforms may decrease or have to switch off comments.  It will be extremely interesting to see how this develops now that the High Court has spoken.

HIGH COURT MAJORITY DECISION

Defamation is a tort of strict liability, that is that a defendant can be liable even though no injury to reputation was intended and the defendant acted with reasonable care. The intent of the author of the defamatory matter is not relevant because the actionable wrong is the publication.  The High Court has also agreed that the publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.

Both of the majority judgments provided by the Court made reference to Facebook posters’ ability to hide comments through the application of a filter which could prevent publication of all comments except to the administrator of the Facebook page and the judgements noted that also “the number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or the broadcaster, and the revenue from advertising on both the page and the digital newspaper or broadcaster” (Decision of Kiefel J,  Keane J and Gleeson J at paragraph 8).

The High Court found that the provocative nature of the Facebook posts by the Media Companies and the manner of posting them facilitated, encouraged and thereby assisted the posting of the comments by third party Facebook users rendering the Media Companies publishers of those comments.  It is believed that this leaves an opening for this decision to not apply where the nature of a Facebook post is not provocative in nature or seen to encourage the posting of adverse defamatory Facebook comments to the post.  It will however be interesting to see whether media outlets now turn off the comments function, which at the time of the incidents in the Voller decision was not able to be done on Facebook but is a function that has now been introduced to Facebook, this would thereby prevent the potential of a defamation claim being brought.  However, due to the algorithms that apply to Facebook and social platforms if comments are not made to posts they do not move into other user’s feeds and therefore reduce the impact and exposure to the public of the article.  The Media Companies in the Voller decision were found to attract significant advertising revenue based on the volume of traffic moved from social media platforms to the Media Companies’ websites and the fact that that could be recorded was a significant benefit to increasing advertising revenue for the Media Companies.

THE MINORITY JUDGEMENTS

The dissenting judgments of Justice Eddleman and Justice Steward are both of significant interest.  Of particular interest is the example provided by Justice Eddleman in the opening paragraph to his judgment where he introduces the potential absurdity that the majority decision could result in.  That being, where a company or an individual that posts a Facebook article then has a comment made to that article which is defamatory but has no connection in any way to the issues raised in the post could still be defamatory.  The example provided by Justice Eddleman is, suppose a media outlet posted a mundane story about weather patterns and then a third party Facebook user commented on the story and made a defamatory remark, that a particular named person was a thief.  The comment is entirely unrelated to the weather story and however potentially based upon the majority decision in the Voller matter the media outlet that published the weather pattern story may be liable for the defamatory comment made to that post.  The majority decision did not seem to require there to be a nexis (connection between the article published and the comment made to it).

Justice Eddleman suggested that a further test should be applied such that there be a requirement to establish that the comment had a connection to the subject matter posted that is more than remote or tenuous.  Justice Steward in a similar considered judgment to Justice Eddleman considered that the comments should be required to have been procured, provoked or induced (by posts made).  It appears that there is a degree of logic to prevent the floodgates on defamation cases opening by applying some of these further requirements, on the ability to make a claim, that are outlined in Justice Steward and Justice Eddleman’s decisions.  However, the law now stands as the majority judgment which potentially does open the flood gates as there does not need to be a nexis.

The Voller matter now returns to the New South Wales Supreme Court as this was only a decision that dealt with the issue of whether the Media Companies were the publishers of the third-party user’s comments.  There are still issues of proving the defamation and the defences that the Media Companies will raise including the defence of innocent dissemination, that has the potential for being successful.

CONCLUSION

In conclusion, the law as it stands following the High Court’s Voller decision is such that users of social media that leave the comments function on, do so at significant risk.  Comments made to articles published even though made by completely separate third party users creates the risk of the original poster of the article to be subject to defamation claims.

The High Court’s majority judgement’s reliance on a 1928 decision in reaching its decision tends to suggest it is out of step with the changes, social and digital media are bringing to society.  The legislate is currently reviewing national defamation laws and must now address this issue.

 

About the author: This article has been authored by Steven Brown who is a Perth lawyer and director at Lynn & Brown Lawyers. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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