Some of Australia’s biggest media companies have lost a bid in the high court to escape liability for defamatory third-party comments on their social media posts.
In a five-two majority decision on Wednesday, the court rejected Fairfax and News Corp’s appeal, finding they could be held liable for allegedly defamatory material posted to their Facebook pages about Dylan Voller, whose mistreatment in the Northern Territory’s Don Dale youth detention centre led to a royal commission.
The ruling means the case will now return to lower courts to determine whether Voller was defamed, potential defences and damages.
The majority found that merely facilitating and encouraging comments amounted to “participation” in the communication of defamatory material, even if the original poster was not aware of the content of later comments.
The decision is expected to have ramifications for Australian media companies, making them likely to ban comments on more posts or discouraging them from posting stories to social media.
Voller’s lawyers, O’Brien Criminal and Civil Solicitors, said their client felt vindicated by the decision, describing the case as a “historic step forward” that would help Voller win his case and protect other vulnerable people “from being the subject of unmitigated social media mob attacks”.
Michael Miller, 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”.
In July 2017, Voller sued the media companies for comments by Facebook users which his lawyers said caused him extreme emotional and mental distress.
In the appeal, heard in May, the media companies argued they should not be liable because they did not have “knowledge and control” over comments on Facebook posts, and had not “intentionally lent assistance” to the publication of defamatory material.
In the majority judgment, chief justice Susan Kiefel and justices Patrick Keane and Jacqueline Gleeson held that defamation is judged by the standard of “strict liability” – with no proof of fault, or intention to damage a person’s reputation, required.
In a separate judgment, justices Stephen Gageler and Michelle Gordon agreed that the media companies were publishers of the subsequent comments, adding that the advent of the internet and “many-to-many” publication did not warrant relaxing strict defamation laws.
Gageler and Gordon accused media companies of portraying themselves as “passive and unwitting victims of Facebook’s functionality”, which had an “air of unreality” because they had commercially benefitted from using Facebook.
In March, Facebook introduced a new feature allowing comments to be disabled on posts.
Justice James Edelman, who would have allowed the appeal, found the media companies were not publishers of “uninvited words written on their Facebook pages”.
“There is no meaningful sense in which it could be concluded that Nationwide News intended to publish remarks that were not, in any imaginable sense, a ‘comment’ on the story,” he said, comparing defamatory remarks to “graffiti on a commercial noticeboard”. “Neither satisfies the required intention for publication.”
Edelman concluded that, to win the ultimate defamation case, Voller should have to show a “connection to the subject matter posted by the [media companies] that is more than remote or tenuous”.
Justice Steward also dissented, noting that posting to Facebook “starts an electronic conversation” that could spark “thousands of comments from around the world” while the original poster has “no actual means of controlling the contents of such comment”.
Steward held that social media posters should be liable only where their posts “procured, provoked or conduced” later defamatory comments.
The media companies’ appeal was dismissed with costs.
O’Brien Criminal and Civil Solicitors described the decision as “common sense”, confirming the “longstanding law on the issue of publication”.
“It is commonly known that media companies encourage increased engagement on their posts so that their content is seen by a larger audience,” they said in a statement.
“This helps in attracting advertising revenue. With this strong commercial imperative driving them, there was no doubt that the media companies lent their assistance to the publication of third-party comments.
“They did everything they could to encourage the same and it is disingenuous of them to say they played no role in publication of the same.”
O’Brien Criminal and Civil Solicitors said the decision would require “media companies with huge resources, to monitor public comments in circumstances where they know there is a strong likelihood of an individual being defamed”.
A spokesperson for Nine, the owner of Fairfax, said it recognised the decision and hoped the second stage of defamation law reform could address the “consequences … for publishers”.
“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,” Nine said.
“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.”