- The Supreme Court of New South Wales has held that operators of public Facebook pages are ‘publishers’ of comments made by the users of those pages, meaning operators are potentially liable if the comments are defamatory.
- Although the Voller case concerned public pages maintained by media companies, the decision creates potential liability for anyone using Facebook or other social media platforms for a commercial purpose.
- Social media means we are all publishers now, so we need to know about the laws relating to publication.
‘Never read the comments’ is often said to be one of the cardinal rules of the Internet – indeed, if you need reminding of the importance of the rule, the Internet will helpfully supply you with ‘Never read the comments’ t-shirts and cross-stitch patterns so you don’t forget. And although there is much disagreement as to whether or not Winston Churchill actually uttered the oft-ascribed quote that ‘the best argument against democracy is a five-minute conversation with the average voter’, many would find little disagreement if a modern-day Churchill was to opine that ‘the best argument against democracy is five minutes spent reading the comments posted by the average Facebook user’.
However, whenever there is a rule there will be exceptions that prove the rule. One important exception is that if a business allows comments on its website (or has a public Facebook page, which allows comments to be posted as a result of Facebook’s settings) it seems that someone will indeed have to read the comments to identify (and, if necessary, remove) problematic comments.
The reason for this is that comments can give rise to legal liability for the business, even where the business is not the commenter. As a recent decision of the Supreme Court of New South Wales (Voller v Nationwide News Pty Ltd  NSWSC 766 (‘Voller’)) has demonstrated, encouraging or promoting the publication of comments might be enough to make the business liable as a ‘publisher’ to a person defamed by those comments.
The Voller decision – background
Dylan Voller is an Indigenous man who, in his early years, was not unknown to the criminal justice system in the Northern Territory. In 2016, he became known to the Australian public when footage of him restrained in a chair in a detention centre was broadcast by the ABC’s Four Corners program.
Subsequently, many articles and television stories concerning Mr Voller were generated by a number of Australian media companies. Some of these media companies posted stories concerning Mr Voller to their public Facebook pages. Three of them were sued by Mr Voller for defamation – not because any of the stories were alleged to be defamatory, but because Mr Voller claimed to have been defamed by comments posted on Facebook by Facebook users in response to those stories.
This raised a question as to whether the media companies could be liable for the content of comments written by third parties; this was dealt with by Justice Rothman as a preliminary question. The specific question which Justice Rothman was asked to determine as a separate question was ‘[w]hether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users that are alleged to be defamatory?’
This question was answered ‘Yes’. To understand why that answer was reached, it is necessary to understand what ‘the publication element’ means in the context of an action for defamation.