Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Ltd v Voller; Australian News Channel Pty Ltd v Voller

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Keane,Gleeson JJ.,Gageler,Gordon JJ.,Edelman J.,Steward J.
• Judgment Date: 08 September 2021
• Neutral Citation: [2021] HCA 27
• Docket Number: S236/2020, S237/2020 & S238/2020

Fairfax Media Publications Pty Ltd

Appellant

and

Dylan Voller

Respondent

Nationwide News Pty Limited

Appellant

and

Dylan Voller

Respondent

Australian News Channel Pty Ltd

Appellant

and

Dylan Voller

Respondent

[2021] HCA 27

Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward And Gleeson JJ

S236/2020, S237/2020 & S238/2020

HIGH COURT OF AUSTRALIA

Defamation — Publication — Where appellants were media companies — Where each appellant created, operated and maintained public Facebook page — Where each appellant created posts on Facebook page hyperlinking to news stories referring to respondent — Where third-party Facebook users left “comments” on appellants' posts — Where comments alleged to be defamatory of respondent — Whether appellants “publishers” of comments — Whether intention to communicate defamatory matter necessary for appellants to be publishers.

Words and phrases — “communication of defamatory matter to a third party”, “defamation”, “digital newspaper or broadcast”, “encouraged and facilitated”, “Facebook comments”, “Facebook page”, “innocent dissemination”, “intention to publish defamatory matter”, “internet platform providers”, “participation”, “participation in the process”, “publication”, “publisher”, “rebuttable presumption of publication”, “strict liability”, “third party”.

Defamation Act 2005 (NSW), s 7(2).

Representation

N J Young QC and P D Herzfeld SC with L E Barnett for the appellant in each matter (instructed by Ashurst)

P W J Gray SC with R W Potter SC and L A R Goodchild for the respondent in each matter (instructed by O'Brien Criminal and Civil Solicitors)

ORDER

In each matter:

Appeal dismissed with costs.

1 Kiefel CJ, Keane And Gleeson JJ. The appellants, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, publish newspapers which circulate in New South Wales or operate television stations, or both. They each maintain a public Facebook page on which they post content relating to news stories and provide hyperlinks to those stories on their website. They invite comment on the posted content from members of the public who are Facebook users. Comments which are made appear on the Facebook page and are available to be seen by other Facebook users.

2 In each of the three proceedings brought in the Supreme Court of New South Wales, the respondent claimed that following the appellants posting about particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.

3 The parties agreed to the terms of a question concerning the issue of publication. The Supreme Court ordered that the question be decided separately from the balance of the proceedings 1. The question was whether the respondent, the plaintiff in the proceedings, “has 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 appellants took the view that a negative answer to the separate question would result in dismissal of the proceedings.

4 The primary judge (Rothman J) answered the separate question in the affirmative 2. Each of the appeals from that decision was dismissed 3.

Background facts

5 The appellants each maintain a public Facebook page on terms of use agreed with Facebook. The page is used by each appellant to share content and connect with Facebook users. The page is publicly accessible to users, who are able to view and comment on content posted to that page.

6 The use by each appellant of their Facebook page usually involves the posting of a hyperlink to a news story, with a headline, a comment and an image. Clicking on the hyperlink takes the reader to the full story on an appellant's news website. Readers are invited, by options which appear under the post, to “Like”, “Comment” on or “Share” the post. These options are standard features of a Facebook page. Comments which are made by users appear on the page and are available to be seen by all Facebook users who can see the page.

7 The Facebook page used by each appellant is managed by a Page administrator, the person or persons authorised by the appellant to administer it in accordance with Facebook's terms of use. There was evidence before the primary judge, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked. Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to “hide” most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook “friends”. Hidden comments could then be individually assessed by an administrator. If sufficient staff were allocated to perform this task, comments could be monitored and un-hidden if approved by an administrator.

8 The primary judge found, as might be anticipated, that certain posts would be expected to draw adverse comments about the person who was the subject of the news story. It was not in dispute that the use of a Facebook page encourages and facilitates visits by third-party users to a media outlet's own website. The number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and the revenue from advertising on both the page and the digital newspaper or broadcast.

The Defamation Act 2005 (NSW)

9 Section 6 of the Defamation Act 2005 (NSW) states the subject matter of the Act to relate to “the tort of defamation at general law”. It provides that the Act “does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)”.

10 Provisions of the Act refer to the “publication of defamatory matter” 4. “Matter” is relevantly defined 5 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. The Act does not define what is meant by the “publication” of defamatory matter. Resort is necessary to the general law in that regard.

11 The Defamation Act makes provision, in s 32, for a defence of innocent dissemination. A defence of this kind has its origins in the common law. No question as to the availability of the statutory defence arises with respect to the answer to the separate question. Nevertheless, the appellants refer to the cases which developed the defence at common law and later observations about those cases. The appellants submit that the cases illuminate what it means to be a publisher.

The argument and decision below

12 The appellants argued their cases in the Court of Appeal on the basis that, to be publishers, they must have been instrumental to, or a participant in, the communication of the alleged defamatory matter. This was a correct approach and followed the meaning of publication given in Webb v Bloch 6, to which reference is made later in these reasons.

13 The appellants argued that they did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication 7; they merely administered a public Facebook page on which third parties published material. They submitted to the Court of Appeal that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.

14 Reliance was also placed by the appellants on cases which involved actions brought against owners or occupiers of premises in which unauthorised third

parties affixed defamatory statements on the wall of a premises 8 or scrawled them as graffiti on the walls of a structure 9. In cases of this kind the occupier has been regarded by the courts as a publisher only if, after becoming aware of the statements, the occupier allowed them to remain in place and the circumstances justified an inference that they had accepted responsibility for the continuing publication of the statement by adopting or ratifying it

15 In a case to which reference was made in the judgments in the Court of Appeal 10 it had been held that internet platform providers which hosted a discussion forum were in a different position from the occupiers referred to in those cases. Unlike the occupiers, the providers had encouraged and facilitated postings by members of the forum and were therefore held to be participants in their publication from the outset 11.

16 Basten JA accepted that the appellants played no such active role, distinguishing them from the internet platform providers in that case, but nevertheless considered the appellants to be publishers, as did Meagher JA and Simpson A-JA 12. Each of their Honours pointed to the appellants having facilitated the making of comments by third parties which then became available to others. Meagher JA and Simpson A-JA pointed out that the appellants invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might avail themselves of it. Their Honours upheld the primary judge's answer to the separate question, that the plaintiff had established the element of publication.

17 After finding the...