On September 8, 2021, the High Court of Australia (the highest court in Australia’s court hierarchy) dismissed an appeal by three large media outlets against a decision of the Court of Appeal of the Supreme Court of New South Wales concerning whether, “by posting content relating to news stories about Mr Voller, the respondent, on their respective Facebook pages, the appellants were liable for the publication of allegedly defamatory ‘comments’ that were posted by third-party Facebook users in response to the content.” (High Court of Australia, Summary: Fairfax Media Publications Ltd v Dylan Voller; Nationwide News Pty Limited v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller  HCA 27 (Sept. 8, 2021) (Summary).)
The High Court’s decision means that Voller’s defamation case against the entities can now continue in the New South Wales Supreme Court.
The respondent, Dylan Voller, brought proceedings against the three appellants in the New South Wales Supreme Court, claiming that after the appellants published posts about news stories referring to him on their respective Facebook pages, a number of third-party users made comments on the posts that were defamatory of him. He alleged that the appellants were liable as publishers of those comments under the Defamation Act 2005 (NSW). (Fairfax Media Publications Ltd v Dylan Voller; Nationwide News Pty Limited v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller  HCA 27 (Sept. 8, 2021), ¶ 2 (Decision).)
The news stories particularly concerned Voller’s incarceration in a juvenile detention center in the Northern Territory. His treatment as a detainee was revealed as part of an investigation by the Four Corners national current affairs program, which is screened on Australia’s ABC Television network. That investigation led to the federal government establishing a royal commission and board of inquiry into the protection and detention of children in the Northern Territory.
The High Court noted that the Defamation Act 2005 (NSW) refers to the “publication of defamatory matter” and that, while “matter” is defined in the act (“to include an article, report or other thing communicated by means of a newspaper and a report or other thing communicated by means of television, the internet or any other form of electronic communication”), there is no definition of what is meant by the “publication” of defamatory matter. Therefore, the courts need to resort to the general law; the act specifically states that it does not affect the operation of the general law in relation to the tort of defamation, except as provided otherwise. (Decision ¶¶ 9–10.)
The appellants argued in the High Court that “the common law requires the publication of defamatory matter be intentional” and “[i]t is not sufficient that a defendant merely plays a passive role in the process of publication.” (¶ 18.) The appellants did not rely on a defense of innocent dissemination, which is provided for under section 32 of the Defamation Act 2005 (NSW), but did refer to cases that developed the defense at common law in support of their arguments that publication is more than mere dissemination and requires an element of intention. (¶¶ 11, 17 & 19.)
Three justices of the High Court (Kiefel CJ, Keane & Gleeson JJ) held that “[t]he appellants’ contentions are not supported by authority and cannot be accepted.” (¶ 22.) They stated that
[a]n action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. The intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it. (¶ 27.)
In discussing the cases related to the defense of innocent dissemination, the three justices stated that the views expressed by the judges in those cases should be accepted as the explanation of what a successful “defence” of innocent dissemination achieves. It is not that publication is to be taken not to have occurred. In providing for the defence, the courts are to be understood simply to except from liability a defendant who would otherwise have been liable as a publisher. (¶ 49.)
The justices held that “[t]he Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.” (¶ 55.)
Two of the other justices on the panel (Gageler & Gordon JJ) agreed with this finding, and added some further observations. (¶ 59.) For example, after quoting a chapter of an 1891 textbook dealing with civil liable, the justices stated that
[t]he word “intentionally” within the second quotation should be understood to be directed at an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter. Enough for participation in a process that is in fact directed to making matter available for comprehension by a third party to be characterised as intentional is that the participation in the process is active and voluntary. That is irrespective of the degree of active and voluntary participation in the process. And it is irrespective of knowledge or intention on the part of the participant as to the defamatory content of the matter published. (¶ 66.)
[e]ach appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to “Like” or “Share”) to “Comment” on the content by posting a comment which (if not “filtered” so as to be automatically “hidden” if it contained “moderated words”) was automatically accessible in a comprehensible form by other Facebook users. (¶ 98.)
Having regard to the findings of the primary judge in the case (in the New South Wales Supreme Court), the justices considered that “the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.” (¶ 102.)
The two remaining justices (Edelman J & Steward J) held in separate dissenting judgments that the appeals should be allowed in part and that there should be an order that the plaintiff (Voller) establish the publication element in respect of each of the Facebook comments. (¶¶ 144 & 186.)
Impact and Response
The executive chairman of News Corp Australia said the decision was “significant for anyone who maintains a public social media page by finding they can be liable for comments posted by others on that page even when they are unaware of those comments,” highlighting “the need for urgent legislative reform.”
A spokesperson for the Nine Network, a major commercial television network, stated as follows:
Nine recognises the decision of the High Court which makes news businesses liable for any post made by the general public on their social media pages as the “publisher” of those comments[.]
We are obviously disappointed with the outcome of that decision, as it will have ramifications for what we can post on social media in the future.
We are hopeful that stage two of the review of the Model Defamation Provisions will take account of the High Court’s decision and the consequences of that for publishers.
We also note the positive steps which the likes of Facebook have taken since the Voller case first started, which now allow publishers to switch off comments on stories.
In a statement, the lawyers for Voller said that the High Court’s decision “accords with longstanding law on the issue of publication,” and that it was “an historic step forward in achieving justice for Dylan and also in protecting individuals, especially those who are in a vulnerable position, from being the subject of unmitigated social media mob attacks. This decision put responsibility where it should be; on media companies with huge resources, to monitor public comments in circumstances where they know there is a strong likelihood of an individual being defamed.”
An Australian law professor considered that the ruling “may inspire many social media account managers to make greater use of these features and tightly restrict comments — or, where possible, switch them off completely.” He also noted that Voller’s legal team sued straight away, without issuing a “concerns notice” first, which gives the recipient the opportunity to respond before proceedings are initiated. Under changes to the model defamation law, which have recently been implemented in New South Wales, Victoria, South Australia, Queensland, and the Australian Capital Territory, plaintiffs must now serve such a concerns notice on each defendant and wait at least two weeks before suing. The reforms also introduced a “serious harm threshold,” requiring a plaintiff to prove that he or she suffered serious harm to their reputation as a result of the published comments.
The New South Wales government is leading the review of the model defamation laws. A discussion paper released in April 2021 as part of stage two of the review “addresses the question of internet intermediary liability in defamation for the publication of third-party content.” Submissions on the discussion paper closed on May 19, 2021.