- The High Court decision of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller is a case of narrow issue but has far-reaching consequences.
- By majority, the Court found that because the news outlets intentionally published a public Facebook page with stories and links that invited third-party comments, they were considered to have facilitated, encouraged and assisted the publication of those comments.
- Any business that hosts a website or social media page should review their social media engagement processes and take steps to either prevent or moderate comments to reduce the risk of defamation liability.
The confluence of the social media juggernaut Facebook and an assortment of cases, including some from the 19th century, is surely a rare bird. But it emerged recently in full flight in the High Court of Australia in a case of narrow issue but far-reaching consequences. It is the much-anticipated David & Goliath-esque Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27. The issue concerned the meaning of ‘publisher’ in Australian defamation law.
The decision has sent shockwaves throughout Australian media. By a 5:2 majority decision, the gravamen is that a media outlet is legally responsible as a ‘publisher’ for defamatory comments made by readers on its Facebook page. This means, at least in theory, that anyone holding a social media page can be sued over disparaging comments posted by random group members – even ‘trolls’ – regardless of whether the host is aware of the comment.
The factual context of the case is both fascinating yet beguiling from a ‘future ramification’ perspective. The appellants were three major news companies. They each maintained a Facebook account on which they published news stories. Readers could leave ‘comments’ or ‘likes’ on the posts. One such news story concerned Dylan Voller – a young Aboriginal man whose poor treatment in youth detention sparked a 2016 royal commission. Mr Voller commenced defamation action against the news outlets for comments made by members of the public on the news outlets’ Facebook pages. He alleged each news outlet was a ‘publisher’ of the third-party comments under defamation law.
An essential element of Australian defamation law is that material must be ‘published’ for it to be defamatory. Publication is the process by which a defamatory statement or imputation is conveyed. Defamatory material can be published even if there is no intent to defame. Crucially for the Voller case, defamatory material can also be published by failing to act.