Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Court: High Court of Australia
Date of Decision: 8 September 2021
Facts:
Dylan Voller, the respondent, was a well-known figure in Australia due to his treatment in juvenile detention, which was widely publicized. Several media companies, including Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited, and Australian News Channel Pty Ltd (the appellants), operated Facebook pages where they posted stories related to Voller, inviting public commentary on these posts. Voller brought a defamation claim against the media companies, arguing that they were liable as publishers of allegedly defamatory comments made by third-party users on their Facebook pages.
The Facebook pages allowed users to comment on posts, making those comments visible to the public. The appellants had control over their Facebook pages and could moderate comments, either by deleting or hiding them, but they argued they did not actively encourage or participate in the defamatory statements made by third parties.
Although the appellants in this case are media companies, and the posts in question were made on a Facebook page, the implications of this judgment reach far beyond Facebook and the media sector, extending to:
- any individuals and entities that operate their own websites and social media platforms, including non-media businesses, nonprofit organizations, and governmental agencies; and
- all websites and social media platforms, not limited to Facebook alone.
Issues:
- Whether the appellants were “publishers” of third-party comments under defamation law by virtue of administering Facebook pages where users posted allegedly defamatory comments.
- Whether it was necessary for the appellants to intend to publish the defamatory comments to be held liable as publishers.
Decision: The High Court ruled that the media companies were indeed “publishers” of the third-party comments posted on their Facebook pages. The appeals were dismissed, and costs were awarded to Voller.
Reasoning:
- Definition of Publication:
The Court emphasized that under Australian defamation law, publication occurs when a person intentionally participates in a process that makes defamatory material accessible to third parties. The Court determined that each appellant was actively involved in facilitating and encouraging the posting of comments by third parties. By maintaining and administering a public Facebook page where comments could be posted and viewed by others, the appellants created an opportunity for defamatory content to be shared. - Strict Liability and Intent:
The High Court rejected the appellants’ argument that defamation liability requires intent to communicate defamatory content. Australian defamation law is based on strict liability principles, meaning that a publisher can be held liable without intending to publish defamatory material. The mere act of enabling third-party comments constituted sufficient involvement in the publication of the defamatory material, irrespective of the appellants’ knowledge or intent regarding the specific content of the comments. - Distinction from Innocent Dissemination:
The Court examined the concept of “innocent dissemination,” a defence that traditionally protects secondary distributors (e.g., booksellers) who lack editorial control over content. However, this defence was not available to the appellants, as they played a direct role in facilitating comments on their platforms and could moderate or restrict those comments. The Court clarified that for primary publishers, liability arises from facilitating the process by which content is made publicly available. - Significance of Online Platform Providers as Publishers:
In examining cases from other jurisdictions, such as Oriental Press Group Ltd v Fevaworks Solutions Ltd, the Court noted that platform providers who encourage and facilitate user engagement are held liable as publishers of defamatory content under similar legal principles. This analogy underscored the appellants’ liability, as their actions in promoting and managing the Facebook page directly contributed to the publication of the defamatory comments.
Key Takeaways:
- This decision establishes that social media page administrators can be held liable for third-party defamatory content posted on their pages if they actively facilitate or encourage interaction that results in defamatory material being made available.
- Under Australian law, defamation liability attaches regardless of the publisher’s intent to defame. Liability is strictly linked to the act of making the defamatory content accessible.
- The judgment underscores the potential responsibilities and legal risks for administrators of social media pages, particularly media companies and organizations, who may need to exercise proactive comment moderation to mitigate the risk of defamation claims.
Conclusion:
The ruling significantly impacts the media industry and social media administration in Australia, as it imposes a heightened duty on media companies and other social media administrators to monitor and moderate third-party content. Media organizations are likely to reevaluate their social media engagement practices, possibly limiting public comment features or increasing moderation efforts to avoid future liability. Furthermore, this decision contributes to ongoing legal discussions about the responsibilities of internet platform providers regarding user-generated content, emphasizing the importance of striking a balance between freedom of expression and protection from defamation in the digital age.
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