Business promotion online – liability for comments by others

The recent High Court case of Australian New Channel Pty Ltd v Voller [2021] HCA 27 (Fairfax) found a business which published ‘posts’ on their Facebook page was liable for defamatory comments made by third parties to that post.  Liability may be found irrespective of the publisher’s intent and the relevance of the comment to the original post.

Background to the Fairfax case

The main question before the High Court was whether comments made on a business’s Facebook post would satisfy the publication element of the tort of defamation.

Each of the Appellants maintain a public Facebook page governed by the terms of use with Facebook.  These pages are used to post publicly accessible content to their audience, who are then able to view and comment on the posts on the page.  The Court heard that it is customary practice for each of the Appellants to provide a “hyperlink” to a news story posted on the social media page.  Users are then able to view the full story on the Appellant’s website, at which point they can “Like”, “Comment” or “Share” the post.^[1]

Given the public nature of these Facebook pages, any comments made on the posts are visible by all Facebook users who view the page.  The Respondent argued that a Fairfax Facebook page administrator would prevent or block or ‘hide’ the posting of comments made by a third-party to their page.  In doing so, individual comments could be deleted after they were posted, having no affect on publication.  Further, ‘hiding’ posts would prevent publication of the comment to all except the administrator and the comment poster’s Facebook “Friends”.  The High Court considered such features enabled the administrator to review the comments made on posts published by the company.^[2]

‘Publication’ not defined

The Defamation Act 2005 (NSW) (Act) does not effect the operation of the general law in relation to the tort of defamation except to the extent that it provides otherwise.^[3]  However, it may assist the general law.  Section 4 of the Act refers to the publication of defamatory matter.  “Matter” includes an article, report or 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.^[4]  The Act is silent, however, as to what is meant by the ‘publication’ of defamatory matter.^[5]

The common law accepts that to be a publisher, one must have been instrumental to, or a participant in, the communication of the alleged defamatory matter.^[6]  An analogy was drawn between the present case and cases involving defamatory land owners/occupiers who had, unbeknownst to them, third parties paint defamatory statements or graffiti on the walls of their structure.^[7]  Such occupiers would only be publishers if, after becoming aware of the unsolicited graffiti or similar, they did not make efforts to remove it.  The Appellant submitted that they were equivalent to the supplier of paper to a newspaper owner – not involved with the production of the comment.  However, the High Court acknowledged that the Appellants:

• invited and encouraged comments from Facebook users; and
• provided the vehicle for publication to those who might avail themselves of it.

The High Court then considered the Appellants contention that the common law requires a publication of a defamatory matter be intentional.  It simply found that this position was not supported by authority and subsequently rejected it.^[8]

Are there any defences?

Section 32 of the Act provides a defence of “innocent dissemination”.  As per section 32(1)(a), a defendant may use this defence against the defamatory matter if:

• the defendant proves that the publication was merely tended to in the capacity, or as an employee or agent of a subordinate distributor;^[9]
• they were unaware of the material being disseminated, provided such unawareness was not negligent;^[10]

This defence can also be invoked where the defendant is not the first or primary distributor; was not the author; and did not have capacity to exercise editorial control over the content before it was published.^[11]  Given that business owners generally have administrative power over the comments made against their social media pages, it is unlikely this defence will be available in circumstances similar to the Fairfax case.

What the Fairfax decision means for businesses online

This case effectively held that businesses like Fairfax host discussion forums encouraging and facilitating commentary by third parties and were therefore held to be active participants in their publication.^[12]  Businesses with active media platforms allowing for third-party participation must remove any defamatory comments as quickly as is practicable.  Doing so will ensure that liability for such defamatory statements does not fall upon the business.  Site administrators are an appropriate mechanism for achieving this end.

Links and further references

Legislation

Defamation Act 2005 (NSW)

Cases

Fairfax Media Publications Pty Ltd v Voller [2020] NSWCA 102; (2020) 380 ALR 700

Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA27 )(8 September 2021)

Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127

Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 (5 November 1928)

Further information about online business promotion

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 [6].

[2] Ibid [7].

[3] Act s 6.

[4] Defamation Act 2005 (NSW), s 4.

[5] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 [10].

[6] Webb v Bloch [1928] HCA 50.

[7] Byrne v Deane [1937] 1 KB 818; Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127.

[8] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 [22].

[9] Ibid, s 32(1)(a).

[10] Above n 3, s 32(1)(b)(c).

[11] Above n 3, s 32(a)(b)(c).

[12] Above n 1, p 15.

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