The New South Wales Court of Appeal handed down a decision on 1 June 2020 that found several media companies liable for defamatory comments posted by third-party users on the media outlets Facebook pages.
The comments were posted in response to non-defamatory news articles published by three different media companies. The Court of Appeal’s decision affirmed a 2019 judgment finding that various media outlets were publishers of third-party readers’ comments to their news article and, therefore, liable for them. The case revolves around ten comments posted to a series of news articles about the mistreatment about former Don Dale Youth Detention Centre detainee Dylan Voller. The court is yet to determine if the comments are defamatory, but the scene is set for a High Court show down on whether the media companies are liable for defamatory comments made to otherwise legitimate articles. This clearly opens significant ramifications for both media outlets, influencers and the general public when posting articles on social media and whether they could be liable for defamatory comments made by third parties.
Elements for a defamation finding
Defamation is a tort and in Western Australia it is covered by the Defamation Act 2005 (WA). There is substantially mirroring legislation in each state in Australia. If your reputation has been damaged by statements or images that another person has made public, you may be able to sue them for defamation. You have to prove three elements for a matter to be defamatory, that being:
- the words or images are defamatory;
- the defamatory material identifies you; and
- that the material has been published.
The First Decision
In the first instance, decision Voller v Nationwide News Pty Ltd, Fairfax Media Publication Pty Ltd and Australian New Channel Pty Ltd  New South Wales SC 766 the court put aside the element of whether the words in the comments were defamatory and whether the defamatory material provided identification of Dylan Voller and was solely looking, at this stage, at the element of whether the three media outlets, by the comments that were made to their articles, actually published the third-party comments. At first instance, it was found that the media outlets were first publishers of the third-party comments. The court heard a significant amount of expert evidence in relation to the manner in which the media outlets used their social media posts and how they could use Facebook tools to moderate comment made to them. The evidence revealed that it was important to the defendants that comments were made on their Facebook pages as this increased interest and, therefore, increased advertising revenue that they were able to derive. The media companies were found to be receiving a substantial amount of traffic to their websites, where the articles were housed, from the links created through the Facebook postings. It was also found that they used the statistics of this to provide to potential advertisers to generate revenue from advertisement.
The court also found that by proper use of programming tools available through Facebook being things such as word blocking, profanity filters and blocking of specific troll users they could moderate the comments that could be viewed by other users. The court found that by using these tools the media outlets had the capacity to hide comments until the comment was approved. The court acknowledged that this would require additional resources but, at worst, the court found that it would require an equivalent of 2.5 employees and that would include some work already performed.
The Appeal Decision
The Appeal Decision can be found at this link Fairfax Media, Nationwide News Pty Ltd, Australian News Channel Pty Ltd v Voller  New South Wales CA 102. The New South Wales Court of Appeal affirmed the initial decision that the media outlets were primary publishers of the comments. There were also three other media outlets that intervened in the matter as amici curiae (“friends of the court”), to push the case that the media outlets should not be liable for third party comments made to their otherwise non-defamatory articles. The Court of Appeal in affirming the primary Judge’s decision found that as the media outlets actively invited the making of comments and had the ability to moderate them by the means addressed above, that they were the publishers of the third-party comments.
The issue of whether the comments were defamatory has then been remitted to a single Judge of the New South Wales Supreme Court to determine whether or not the comments were actually defamatory and that they clearly identified Dylan Voller for the defamatory comment or imputation to be drawn from it.
The scene is now definitely set for the media outlets to appeal this decision to the High Court. They will have to obtain leave from the High Court for the appeal to proceed but one would think that a matter of this significance and broad ramifications, leave to appeal will be granted.
The possible ramifications of this decision are broad reaching to not only media outlets, but also businesses that use social media as a way of marketing and attracting customers and the issue of whether this decision would reach to individuals. Looking at the logic behind the decision made at first instance, which was affirmed in the appeal, that as the media outlets were using the Facebook posts to generate revenue and attract customers to their website, that may be something that would be able to distinguish the decision from a case that was brought against an individual. It would, however, be more tricky to distinguish it on that element from a business that is not a media outlet but use social media to general revenue.
If you are operating a business social media page, you should receive advice on your risk of exposure and what you can do to minimise that. Please contact Lynn and Brown Lawyers for further advice.
Looking for more insights from Lynn & Brown Lawyers into defamation? Find out whether you can sue Google for defamation, learn the definition of what exactly defamation means, what you can do if you’re being sued for defamation, and why you should beware of comments made to your social media posting.
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.