On 8 September, the High Court of Australia (HCA) found that several media companies were liable for comments posted by third parties on their social media pages. The HCA upheld that the media companies in facilitating, encouraging and assisting the posting of comments by third-party Facebook users rendered them publishers of those comments.
Adopting a decision of Dixon J, the HCA stated that the liability of the publisher depends upon “the mere communication of the defamatory matter to a third person”.[1] The Court distinguished this from other cases in which the defendants played no role in the facilitation of publication prior to becoming aware of the defamatory matter. In this case, it was determined that the primary purpose of the media companies utilising Facebook was to optimise consumption of their content. This was held to have satisfied the threshold that they intentionally participated in the process where the posted comment becomes available to others, and therefor they are the publishers of the comments.
The HCA rejected the argument that in order to be a publisher, the Facebook page owner must be aware of the defamatory matter and have intended to convey it. In defamation law, the actionable wrong is the publication which causes the harm to a person’s reputation. Defamation is a strict liability offence meaning that an intention to injure reputation does not have to be proven.
Questions have been raised about the implications for other Facebook groups such as community noticeboards, which do not have the resources to monitor the comments like the media outlets in the case.
The case centres on the claim brought by Dylan Voller, an Indigenous Australian who appeared in videos cuffed, and wearing a spit hood taken at a Detention Centre in 2016. His mistreatment led to a Royal Commission in the Northern Territory in 2016.
Media companies Fairfax Media, Nationwide News and Australian News Channel shared the videos of Voller which attracted allegedly defamatory comments from third party posters. Voller elected to take the novel and ultimately successful approach of commencing legal action against the media companies, not the original posters of the comments.
Recommendations to businesses and organisations
The extent of the application of this decision is still being considered. It is therefore in the best interests of all businesses, organisations, and indeed anyone who runs a Facebook page or an interactive page on another social media platform, to closely monitor the comments and responses to the content posted and shared.
If you have concerns about your ability to monitor the comments due to resourcing or the number of responses, it could be recommended to restrict the commenting functions to reduce some of the risk associated with unchecked comments.
The team at Griffin Legal can assist in implementing a social media policy to put processes in place to address the above risks, and other social media concerns.
[1] Lee v Wilson & Mackinnon (1934) 51 CLR 276 [288].
