On 8 September 2021, the High Court ruled in Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller that media companies are ‘publishers’ of comments made on their public Facebook pages for the purposes of defamation law.
Background
Between December 2016 and February 2017, Fairfax Media Publications (the Sydney Morning Herald), Nationwide News (The Australian), and Australian News Channel (Sky News) published news items concerning the incarceration of Dylan Voller in a juvenile justice detention centre in the Northern Territory with their relevant Facebook pages linking to these news items. Third party Facebook users commented on these Facebook posts in a critical and allegedly defamatory manner.1
Mr Voller commenced defamation proceedings against Fairfax Media, Nationwide News and the Australian News Channel regarding the third party comments about him on their respective Facebook pages.
An issue quickly emerged as to whether the companies were the ‘publishers’ of the comments made by third-party Facebook users on the Facebook pages of media companies.
The Defamation Act 2005 (NSW)
Section 6 of the Defamation Act 2005 (NSW) (Act) states that the Act relates to ‘the tort of defamation at general law’ and states that the Act ‘does not affect the operation of the general law in relation to the tort of defamation’.2
Media company arguments
In the New South Wales Court of Appeal, the media companies argued that in order to be ‘publishers’ of the comments they must have been instrumental to, or a participant in, the communication of the alleged defamatory material.3 They argued they did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication – they merely administered a public Facebook page on which the third-party Facebook users published the material. In other words, they argued that they were the equivalent of the supplier of paper to a newspaper owner or the supplier of a computer to an author.4
In the appeal to the High Court, the media companies further argued that the common law requires that the publication of defamatory material be intentional and that it is not sufficient that the defendant merely plays a passive role in the process of publication.5
Who is a ‘Publisher’?
The majority of the High Court agreed that ‘publication’ for the purposes of defamation is the bi-lateral act where the publisher makes the defamatory material available and a third party has it available for their comprehension.6 In other words, ‘publication’ is the process by which a defamatory material is conveyed.
In their judgment, Kiefel CJ, Keane and Gleeson JJ held that Trkulja v Google LLC (2018) 263 CLR 149 and Webb v Bloch (1928) 41 CLR 331, confirm the correct meaning of ‘publication’ is that any act of participation in the communication of defamatory material to a third party is sufficient to make a defendant a ‘publisher’.7 They went to say that ‘consistently with this common law publication rule, the case of Webb v Bloch is to be understood to say that a person who has been instrumental in, or contributed in any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication‘.8
Gageler and Gordon JJ went onto to say that ‘the advent of the Internet has resulted in a “disaggregation” of the process of publication and has facilitated a shift from ‘one to many’ publication to ‘many to many’ publication. That technological and sociological development has not been shown to warrant relaxation of the strictness of the common law rule associated with Webb v Bloch‘.9
In the view of Gageler and Gordon JJ, the strictness of the common law rules ensures that all degrees of intentional participation in the process of publication constitute publication for the purposes of the law of defamation. As such, liability depends upon the mere communication of the defamatory matter to a third person, provided that person intentionally participated in that process.10
In conclusion, Gageler and Gordon JJ held at paragraph 98 that:
‘each [media company] became a publisher of each comment post on its public Facebook page by a Facebook user…by reason of its intentional participation in the process by which the posted content had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently construed by the [media companies]…posting content on the page the effect of which was automatically to give Facebook users the option to ‘Comment’ on the content by posting a comment which was automatically accessible in a comprehensible form by other Facebook users‘
In other words, simply by creating a public Facebook page where other users were allowed to comment on content, the news media companies became publishers of those comments.
Most interestingly, Gageler and Gordon JJ said it did not matter that news media companies had no control over the way in which Facebook services were provided to them and other Facebook users.11 Their honours stated that the media company’s ‘attempts to portray themselves as passive and unwitting victims of Facebooks functionality’ as having ‘an air of unreality’ and that ‘having taken the commercial benefit of the Facebook functionality, the media companies must bear the legal consequences’.12
Gageler and Gordon JJ provide the analogy of an ‘electronic bulletin board; that posts material with the intention that third parties will comment on the material posted. Such an operator cannot escape being a publisher of those comments.13
The ‘innocent dissemination’ defence
The High Court also considered the common law defence of ‘innocent dissemination’ and its application to the publication rule. In doing so, they clarified that the defence does not operate so as to deny that ‘publication’ has occurred, but rather the defence acknowledges the strictness of the ‘publication rule’, and provides a defence for innocent distributors or disseminators who are not primary publishers.14
Gageler and Gordon JJ confirm this approach observing that that the innocent dissemination defence is a defence in the strictest sense, involving an acceptance of the facts sufficient to establish the legal elements of the cause of action (ie publication) and the avoidance of the legal effect of those facts. They observe that treating innocent dissemination as a defence to a cause of action in defamation rather than a denial of the element of publication is in line with the historical explanations of the rule in Emmens v Pottle given by Vaughan Williams LJ in Vizetelly v Mudie’s Select Library Ltd.15 Understood in this way, Gageler and Gordon JJ state that what occurred in Emmens v Pottle was an ‘innocent publication of a defamatory matter’ and which was for that reason ‘not publication within the meaning of the law of libel’.16
Comparison with other jurisdictions
Gageler and Gordon JJ expressly referred to other overseas decisions, including Tamiz v Google Inc in the Court of Appeal of England,17Monir v Wood of the High Court of England and Wales,18Murray v Wishart of the New Zealand Court of Appeal,19 and Crookes v Newton in the Supreme Court of Canada.20 Their honours stated that none of these cases reflect the common law of Australia,21 suggesting that the law on publication is not firmly settled in Australia and comparisons with overseas jurisdictions is of no utility for Australian defendants into the future.
Interestingly, this decision places Australia firmly at odds with other common law countries and sets Australia on a path of its own when it comes to defamation in the age of the internet.
Read the Decision
The decision can be accessed here.
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This article was written by Nicholas Pullen, Partner.
1Fairfax Media Publications; Nationwide News Pty Ltd; Australia News Channel Pty Ltd v Voller [2020] NSWCA 102 (1 June 2020).
2Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021) (Voller), [9].
3Voller, [12].
4Voller, [13].
5Voller, [18].
6Voller, [23], [61].
7Voller, [30].
8Voller, [32].
9Voller, [86].
10Voller, [88].
11Voller [99].
12Voller, [102].
13Voller, [104].
14Voller, [49].
15[1900] 2 QB 170 at 178; Voller, [76].
16Voller, [80].
17[2013] 1 WLR 2151.
18[2018] EWHC 3525 (QB).
19[2014] 3 NZLR 722.
20[2011] 3 SCR 269.
21Voller [91]-[95].
