Freedom of speech is already a controversial topic when it comes to media platforms but it is about to become a whole lot harder following a recent Facebook defamation claim.
Dylan Voller is suing three media companies over Facebook comments posted in response to stories they had published about him. The preliminary legal issue was whether, since they didn’t write the comments or actively moderate them, they could be said to have “published” them. You can only be liable for defamatory material if you were intentionally involved in the act of publishing it.
The Legal Backstory
The Initial Decision
In June 2019 the Supreme Court of New South Wales held that three of Australia’s largest media organisations were liable for a defamation claim brought by Voller.
Voller (23), already known to the public since the 2016 royal commission into treatment of youth detainees, brought action against the news media companies for tarnishing his reputation online by allowing users to comment on a news post on their respective pages. The comments were, as far as Voller is concerned, defamatory in nature. However, instead of going after the individuals who wrote the comments, Voller commenced proceedings against the companies who allowed the material and the comments to be posted.
Following the pre-trial hearing, Rothman J held that the media companies were considered primary distributors of their individual Facebook news pages and were consequentially liable for any third-party user comments posted.
Unsurprisingly, an Appeal was lodged in the full Appeal Court of the Supreme Court of New South Wales a year later. Somewhat surprisingly, the Court upheld the original decision.
A consequence of the Court’s decision is that, by being a primary distributor, the media companies could not use the defence of innocent dissemination. The news companies argued that they do not use their Facebook pages in the same way users do. Instead, they provide a platform to facilitate the discussion and dissemination of information.
The Court is yet to decide if the actual content posted and the comments were defamatory.
- News media sites on Facebook and other entities with public Facebook pages may be affected by this decision as they are deemed to be primary distributors.
- Media companies ought to turn their minds to (and facilitate) a comment monitoring process to mitigate risk.
- Media companies should utilise Facebook’s options to ‘hide one by one’ or ‘block words’ to prevent action being brought against them as a result of comments from readers.
- Prior to posting content, subject matter of posts should be assessed and its ability to elicit comments of defamatory nature examined;
- Common sense approach should be taken when considering how the audience may react to posts.
- The above is an interesting development which will surely fuel the conversation about the law of defamation and its ‘lag’ in our internet driven world.
Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766.
Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102.
If you would like to speak to someone about content publishing or potential defamation proceedings, you can send us an email to firstname.lastname@example.org or book a confidential and obligation free consultation via our website www.melbournelawstudio.com.au.