+64 7 839 4771

Australian defamation decision raises risk for public Facebook pages

Australian defamation decision raises risk for public Facebook pages

Australian defamation decision raises risk for public Facebook pages

Wednesday 31 July, 2019

The Supreme Court of New South Wales has released a judgment holding that companies that operated public Facebook pages are liable for defamation if someone published defamatory comments on their page.  

Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

Background

Each of the defendants had a public Facebook page. The purpose of the public Facebook pages was to post comments or provide links to articles. Members of the public with a Facebook account were invited to leave comments about the defendants’ posts. The defendants wanted to stimulate people to comment on their posts as much as possible, as Facebook’s algorithms meant that their page would be promoted more. The defendants wanted to induce people to visit their main website and subscribe to their publication. The plaintiff thought that some of the comments made on the public Facebook pages were defamatory of him.

When people comment, there are various ways that the defendants had three options for managing the comments: allowing all comments, but blocking certain comments using a list of offensive words; hiding all comments, and then unhiding each comment after a moderator has reviewed it; or not allowing any comments. The defendants asserted that monitoring would require a disproportionate amount of time and effort, and disabling the comment feature would defeat the purpose of the page, which was to engage the public’s interest. The Court accepted that it was not possible to use a filter and catch all, or even any, defamatory comments in advance. The defendants stated that monitoring of public comments sometimes occurred when posting controversial articles but were unsure whether any assessment for controversiality had actually been done in this particular case.

Allowing comments is publication

The key issue for the Court to decide was whether, by allowing the comments on their public Facebook page, the defendants were held to have ‘published’ the defamatory comments. A New Zealand Court of Appeal case, Murry v Wishart [2014] NZCA 461 held that the owner of a private Facebook page is not liable for defamatory comments posted on his or her page  because Facebook doesn’t allow a site creator to vet comments before they are published; comments can only be removed retrospectively. The Court of Appeal held owners of private Facebook pages were not be liable for defamatory comments unless they had actual knowledge the comments were defamatory and had failed to take them down.

The Court in this case didn’t follow Murray v Wishart. It relied on the fact that owners of public Facebook pages can delay publication of the comments and monitor for defamation before releasing them to general readership. The defendants provided a forum for the publication of comments and encouraged it for their own commercial interests. They were aware that comments were likely to include defamatory material. The Court concluded that the defendants were primary publishers of the defamatory comments.

Implications for New Zealand holders of public Facebook pages

New Zealand courts have not yet considered the liability for defamation of the owners of public Facebook pages, where the owner is able to monitor comments before they are released to the general public. In Murray v Wishart, the Court of Appeal recognised that decisions relating to the defamation liability of internet hosts were very fact-dependant. Thus far, it has only considered situations where the host of the page has little control over comments, and it is entirely possible that it might reach a different conclusion if there was evidence showing that the host of the page did have control over whether comments were displayed to the public.

However, New Zealand hosts of public Facebook pages have the protection of s 24 of the Harmful Digital Communications Act which protects the host of online content from liability in respect of defamatory content provided that it follows the process set out in s 24.

Where to from here?

At least one of the defendants in the Voller cases has already filed an appeal, so it will be interesting to see whether the decision is upheld. However, the recent Paris summit on social media indicates a move in some quarters to hold social media to higher standards of accountability, so perhaps this stricter approach to defamation liability will catch on. In a previous article, we discussed the new Public Interest defence for defamation, click here to find out more. 

 


Please contact James MacGillivray or Kate Cornege if you want to learn more about the issues discussed in this article.