Social Media Users Beware - Who is responsible for publications on social media?
April 19, 2023
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In September 2021, the High Court held in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller
(Voller) that media outlets may be held accountable for comments made by third party users on their Facebook pages as publishers. By extension, it is foreseeable that companies and organisations may now be held to be liable in defamation for comments that are made by third parties on their social media platforms.
What is defamation?
In summary, defamation is the action of damaging the good reputation of someone, whether it be a company or individual, by communicating a defamatory meaning which may arise from the imputations of the publication.
An essential element of defamation law in Australia is that the material must be published. Publication can occur by a variety of methods of communication, including by spoken words or audible sounds, written or printed matter, drawings or photographs, signs or gestures, broadcast or telecast material, live theatrical performances or the display of objects in public.
Intention is not an essential element of defamation. A person or entity can be held liable for publishing defamatory material even if they did not intend to defame anyone. A person can also be held liable as the publisher of defamation if they failing to act or remove the defamatory material.
Voller case: the background
Dylan Voller was a young Aboriginal man who was mistreated in a Northern Territory youth detention centre. Mr Voller’s mistreatment was documented in an ABC Four Corners Report in 2016 which then sparked a Royal Commission into youth detention in the Northern Territory. After the Royal Commission commenced, Mr Voller began making media appearances to discuss his mistreatment. Different media outlets began sharing stories, interviews and videos of Mr Voller on their Facebook pages. Some Facebook users began leaving defamatory comments of Mr Voller on the Facebook pages of those media outlets that had shared content about Mr Voller.
Instead of suing the authors of those defamatory comments, Mr Voller sued the media outlets (Fairfax Media, Nationwide News and Sky News) arguing that they were responsible for publishing the defamatory comments.
Voller case: the argument
The Voller case was initially heard in the Supreme Court of NSW. The primary judge considered whether Mr Voller had "established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users". The media outlets argued that there was no case against them but the Supreme Court found in favour of Mr Voller and held that the media outlets held the burden of publishing the defamatory content.
This decision was appealed to the NSW Court of Appeal and then to the High Court.
The High Court dismissed the appeal and ultimately held that the media outlets were the publishers of the third-party Facebook user comments, affirming the decision made by the Supreme Court. In the reasons for their decision, the majority said that “each appellant by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users.” The High Court said that any degree of participation in the process of communication, however minor, makes the participant a publisher
Implications of the decision
The decision confirmed that media outlets have an active responsibility to monitor and censor comments that are damaging or inappropriate that are published on their Facebook pages.
Prior to the Voller decision, social media platforms (such as Facebook) did not provide users with the option to turn off comments made on their pages. However, Facebook has since modified their platform to provide users with greater control over comments published on their page.
What does this mean for you?
The effect of this decision will likely extend beyond media outlets and Facebook and apply to all people and organisations that maintain their own social media platforms. It is therefore important for all people and organisations that maintain their own social media platforms to ensure they tighten up their review mechanisms and make an active effort to regularly monitor what third parties are publishing on their pages.
By Danielle Williams (Associate) and Matilda Lloyd (Paralegal)
If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on this information.
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