THE VOLLER CASE
The recent case of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766 in the Supreme Court of New South Wales has held that media companies that are the owner of a public Facebook page can be “publishers” of postings that were made by members of the public.
The media companies used Facebook as a channel for broadcasting news stories, or providing links thereto. Typically, this was achieved by posting a link, on their public Facebook page on which a story is introduced with an image, a headline and a comment about the article. The comment about the article links back to the full article on the news website. The public was then invited to make comment on the publication either on the public Facebook page or the news website. The plaintiff, Mr Dylan Voller, did not claim that original articles were defamatory of him, it is only the comments posted in response to the articles that were sued on.
The Court found that the media companies were publishers of the comments as:
1. Ability to Monitor
The Court found that if an author of a comment, were to post a comment on a public Facebook page, publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page 106.
The Court explained that a public Facebook page allows the publication of the Facebook page and comments by the Administrator, but also allows the Administrator to forbid all comments by others. Further, by the use of a list of prohibited words that includes words that would be necessary to render any comment intelligible, the media companies were able to hide all comments, pending the monitoring of such comments .
It is the reservation and capacity to exercise the “final right of approval” that renders the distributor or medium of publication liable for any defamation of another. The media companies could delay the publication of the third-party comments and monitor whether any were defamatory, before releasing them to the general readership. They were not merely a conduit of the comment. The media companies provided the forum for its publication. They were in the position where “they know or can be expected easily to find out the content of the articles being published and … are able to control that content, if necessary preventing the article’s publication” before its publication to the general readership.
In its reasoning the Court also explained that the publications were made for the media companies’ own commercial purposes. In doing so, they assumed the risks that comments made on that public Facebook page would render it liable under various laws that may prevent, render unlawful, or render actionable in damages various statement.
What does this mean?
Owners of public media pages on platforms such as Facebook, Twitter and LinkedIn may face the risk of being sued on the grounds that they were the publishers of defamatory comments made by the public.
If you believe you or your business may have similar issues, or other defamatory issues, please contact Steven Brown, Director, or Stirling Owen, Senior Associate of Lynn and Brown Lawyers litigation team who will be able to advise you on your particular circumstances.
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.