The end of cheap comments

What you need to know

• The High Court of Australia upheld the decision of the New South Wales Court of Appeal that owners and administrators of public Facebook pages can be held liable for defamatory comments made by third parties on their pages by a 5:2 majority.
• The High Court found that succeeding on the defence of innocent dissemination does not mean that publication did not happen and that the defendant is not a publisher, it merely means the defendant avoids liability for publication.
• The decision highlights the need for urgent legislative reform of the law of defamation as it pertains to digital platforms, such as Facebook, and the users of those platforms.

What you need to do

• Owners and administrators of social media pages should limit third party comments to the extent possible, and otherwise monitor them, to try and mitigate any potential liability.  

Background

On 8 September 2021, the High Court handed down its judgment in appeal proceedings seeking to overturn the decision of the New South Wales Court of Appeal in Fairfax Media Publications v Voller [2020] NSWCA 102, which dismissed an appeal from the decision of Justice Rothman in the Supreme Court of New South Wales in Voller v Nationwide News Pty Ltd [2019] NSWSC 766.

The relevant question was whether or not the appellants, Nationwide News, Fairfax Media, and Australian News Channel (which operates Sky News Australia), were publishers of allegedly defamatory comments made by third parties about the respondent, Dylan Voller, which were made on posts on Facebook pages operated or administered by the appellants.

In the first instance, Justice Rothman found that the separate question raised by the parties should be answered in the affirmative: the appellants were publishers of comments made by third parties on their public Facebook pages. Justice Rothman also went beyond the separate question to find that the appellants were primary publishers of the posts, meaning that they were liable regardless of whether or not they had actual knowledge of the content of the defamatory posts.

In the Court of Appeal, Justice Basten, Justice Meagher and Acting Justice Simpson dismissed the appellants' appeal. Whilst the Court of Appeal found that Justice Rothman had erred in making determinations on matters that were outside the scope of the question agreed by the parties (i.e. whether the appellants were a primary or secondary publisher), it was nonetheless determined that Justice Rothman was correct in finding that the appellants were publishers of the relevant comments.

The High Court granted special leave for the appeal to be heard, but dismissed the appeal. Chief Justice Kiefel and Justices Keane and Gleeson wrote the majority judgment, with Justices Gageler and Gordon agreeing with the majority in a separate joint judgment. The majority held the appeal should be dismissed on the basis that the appellants had facilitated and encouraged the posting of comments by third parties, which was sufficient for the appellants to be publishers of those comments.

Justices Edelman and Steward separately dissented, considering that making posts on a public Facebook page is insufficient to justify concluding that the owner or administrator of the public Facebook page participated in the publication of all third party comments to a sufficient degree that they should be considered a publisher. However, both Edelman and Steward JJ considered that the owner or administrator of a public Facebook page could be the publisher of third party comments where something about the content, nature or circumstances of the post by the owner or administrator justified a conclusion that it has procured, provoked or conduced a defamatory third party comment (i.e. that in some way the post invited a defamatory response).

Two primary relevant issues became apparent in the High Court's judgments:

1. what role intention plays in publication; and
2. whether the defence of innocent dissemination can be said to "negate" publication.

The High Court Decision

Publication and Intention

The appellants in the proceedings argued that in order for a defendant to be found to be a publisher of defamatory material, they must evince some intention to publish the material. They argued that this was a requirement of the common law under Webb v Bloch (1928) 41 CLR 331, where Isaacs J favourably quoted a textbook:"… if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him" (at 363-364).

The majority held there was no requirement of intention to publish: mere participation in the act of publication was sufficient for an individual to be held to be a publisher, and the appellants were therefore publishers.

Kiefel CJ, Keane and Gleeson JJ found that an action for defamation does not require proof of fault: defamation is a tort of strict liability, and the intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. Liability does not depend on knowledge of the defamatory matter being communicated or intention to communicate it. Their Honours relevantly stated:

Consistently with Trkulja v Google LLC [(2018) 263 CLR 149] and the publication rule, Webb v Bloch is to be understood to say that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

Gageler and Gordon JJ agreed, stating that liability in defamation depends on mere communication of the defamatory material to a third party, provided the defendant intentionally participated "to any degree" in that process. In their view, technological advancements which enabled communication by many people to many people had not caused or required any modification to the common law, and the strict interpretation of the common law rule continues to apply.

Their Honours stated that each appellant became a publisher of each comment made on their posts as and when that comment was accessed by another user, because of their participation in the process. The appellants participated in the publication by:

• contracting with Facebook for the creation and ongoing provision of the Facebook pages; and
• posting content on the Facebook pages which gave users the option of commenting on the content which (if not hidden using the filtering controls), was automatically available to other Facebook users.

In their view, the fact the appellants had no control over the facility by which Facebook provided its service and that the comment function was a standard feature which could not be disabled was not relevant to whether or not the appellants were publishers, in circumstances where the appellants chose to operate public Facebook pages in order to engage commercially with a significant segment of the population.

Gageler and Gordon JJ stated that "having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences."

Kiefel CJ, Keane and Gleeson JJ held that the reference to intention in Webb v Bloch should be understood to mean that the defendant's participation in publication was voluntary. Gageler and Gordon J agreed, stating that the use of the word "intention" in the case law should be understood as an intention to facilitate or provide a platform for communication, rather than as an intention to publish the defamatory material: it is enough that a defendant's participation is active and voluntary, irrespective of degree.

Their Honours Kiefel CJ, Keane and Gleeson JJ also noted that a defendant who had not initially participated in publication could become a publisher, for example an individual in the Byrne v Deane [1937] 1 KB 818 factual situation of having something scrawled on their wall, and then deciding not to remove it. They did not consider the Byrne v Deane scenario a useful analogy for the present case.

Gageler and Gordon JJ also felt that the conduct of the appellants in this case was distinguishable from that scenario: they held that that case, and others like it, involved defendants who had played no role in the facilitation of publication prior to becoming aware of the publication, and the current proceedings. The appellants intentionally used a platform provided by another entity, created and administered a public page, and posted content on that page, encouraging and facilitating publication of comments from third parties.

Innocent Dissemination

In the majority decisions, their Honours examined the origins and history of the innocent dissemination defence in response to the appellants' argument that the treatment of the common law defence of innocent dissemination supported their argument regarding a requirement of intention to publish defamatory material. The appellants stated that in common law innocent dissemination cases, the approach of the courts was not to regard publication having occurred and then excuse the defendant from liability if the defence is made out, but to allow the defendant to demonstrate that there was no publication.

Kiefel CJ, Keane and Gleeson JJ disagreed with this construction, holding that as it stands, the defence of innocent dissemination is just that: a defence. It does not negate publication such that it is taken not to have occurred. It merely provides publishers with a defence with the result that they are not liable for that publication, if successful. Gageler and Gordon JJ agreed, stating that the defence provides an avoidance of the legal effect of the fact of publication, rather than denying the fact of publication itself.

Counter-Comment: The Dissent

Edelman J and Steward J took a different, more nuanced approach in their dissenting judgments. They disagreed with the majority that merely having a public Facebook page which third parties could comment on was sufficient to make the appellants publishers. In their view, more was required, and an "all or nothing" approach was not suitable.

Justice Edelman's Approach

Edelman J did not consider that the owner or administrator of a public Facebook page should be held to be the publisher of unwelcome and uninvited words written on their Facebook page. He considered that there had to be some factual connection between what is posted by the owner or administrator of the page and the third party comment in order for the owner or administrator to be considered a publisher of that comment.

In Edelman J's view, the defamatory content of a communication may be unintended, but in order to be a publisher of defamatory material, the defendant must have a manifested intention to make a communication to a third party. The intention required is that of an intention to act, rather than an intention to defame.

Justice Edelman noted that a defendant who does not perform an act of publication personally can still be liable for defamation on the basis that they assisted another individual who performed the act of publication, provided that the defendant's assistance occurred with a common intention to publish the communication. As with other torts, assistance can be established by a minor act.

Whether a defendant in the same position as the appellants would be a publisher on the basis that they have assisted another with a common design or intention to publish the communication with that other person will depend on the facts, in Justice Edelman's view. Examination of the relevant circumstances would be required to determine whether there was a common intention.

Merely creating a public Facebook page and posting a story with an invitation to comment on the story does not manifest an intention or common purpose with the author of the comment to publish words that are unrelated to the posted story: such comments are not invited by the posted story.

In circumstances where the appellants wanted to optimise readership of their stories, and having comments on their posts was consistent with that purpose, the appellants had manifested an intention to publish third party comments on their posts. The nature of the story posted may also lead to a conclusion that the appellants were intending to invite a wide range of comments connected to the subject matter of the post.

In Edelman J's opinion, if a comment is genuinely a comment on the posted story, the appellants will be publishers of that comment, "irrespective of whether the appellants knew of, or could have known of, the comment at the time it was published".

While Edelman J's approach would provide more comfort for Facebook page owners and administrators that they will not always be publishers of all third party comments, determining whether a comment is genuinely a comment invited by the post would be difficult. For example, if a newspaper published a post containing a glowing profile of a doctor and their work treating cancer patients, could they be considered to be inviting misogynistic comments on that doctor? It is not clear where the line would be drawn in relation to connection with the subject matter. Edelman J's examples suggest that the comments would need to be truly unconnected to the subject matter of the story in order for the page owner to not be the publisher, but he acknowledges it is a difficult question.

Edelman J agreed with the majority in relation to the innocent dissemination defence, agreeing that while it may have started as a negation of the publication element of the tort, it is now a true defence which simply absolves the defendant of their liability for publication.

Justice Edelman stated he would have allowed the appeal in part. He would have answered the publication question as requiring the plaintiff/respondent to establish that the Facebook comments had a connection to the subject matter posted by the defendants/appellants that is more than remote or tenuous in order to demonstrate that the publication element of the tort of defamation has been met.

Justice Steward's Approach

Justice Steward agreed with Kiefel CJ, Keane and Gleeson JJ that the appellants' argument that there is no requirement of intention to publish for a defendant to be considered a publisher was incorrect. While any degree of participation may be sufficient to make a person a publisher, he stated that what constitutes participation in an action of publication is a question of fact. Justice Steward agreed with Justice Edelman that the test of common intention is applicable to defamation.

Justice Steward considered that making a Facebook post was like starting an electronic conversation with potentially millions of other Facebook users, with no actual means of controlling the contents of the comments.

He considered two propositions to be relevant to the question of participation:

• An individual does not participate in the communication or conveyance of defamatory material just because but for something they did there would have been no such communication or conveyance: the "but for" test is insufficient to identify who participated in publication. For example, a defamatory telephone call could not happen but for the involvement of the telephone company, but the telephone company is not a publisher of the defamatory material in the call; and
• Some acts that facilitate communication of defamatory material are so passive they cannot constitute publication of that material (e.g. internet service providers providing website hosting services).

Justice Steward considered that concepts of passivity, control and prior knowledge of defamatory content may be relevant to a determination as to whether a defendant has participated in the publication of a third party's defamatory comment on Facebook. He stated that it would be difficult to find that an individual had so participated if they could not practicably control the making of such a defamatory comment, had no prior knowledge of the content, and did no more than participate in the electronic conversation. That is, merely making a Facebook post is unlikely to justify a conclusion that the administrator has participated in the publication of all subsequent responses to the post, without more.

A different conclusion may be reached if a finding is available that the administrator "procured, provoked or conduced the defamatory third-party response as distinct from any generally responsive posts". In that case, a more direct causative relationship can be found and a conclusion is open that the administrator participated in the publication of the defamatory content.

In Justice Steward's opinion, owners and administrators of public Facebook pages are not in the same position as operators of an online forum or Google: they were reliant on a program devised and controlled by Facebook, in the same way as all other Facebook users.

If the appellants did not procure, provoke or conduce the defamatory responses, they only facilitated the publication of the third party comments by:

1. creating a Facebook page; and
2. making a post.

Justice Steward did not consider either act, separately or together, sufficient to make the appellants publishers of all third party comments made on their Facebook pages. The extent of the appellants' ability to control the comments was not relevant: controls prevented, rather than caused, publication.

Justice Steward noted that the Facebook posts were generally made to stimulate comments by third parties, but stated that was not sufficient to conclude that the appellants participated in the publication of those responses. It could not be said that the appellants' conduct in every post amounted to procuring, encouraging or conducing the posting of defamatory comments. Nor could it be said that the appellants adopted the contents of the defamatory comments in the instant they were posted.

Justice Steward provided the analogy of a public meeting taking place on the internet. The individual who convenes the meeting is not the publisher of another person's speech at the meeting, unless they contributed to its making or in some way assented to it.

His Honour therefore concluded that, with the exception of any posts that procured, provoked or conduced defamatory responses, the appellants' posts were insufficiently connected to all of the third party comments made in response to justify a conclusion that the appellants participated in their publication. The appellants' posts were not instrumental in bringing about the publication of the comments: they were just the start of the conversation.

In his view, there "must be something about the content, nature or circumstances of a Facebook post that justifies a conclusion that it has procured, provoked or conduced a defamatory third-party comment or comments, such as to make the owner the publisher of such comments." Whether a Facebook post has procured a defamatory response will be a question of fact.

Justice Steward stated he would have allowed the appeal in part, and would have found the answer to the relevant question was that publication will be established for third party comments which have been procured, provoked or conduced by the appellants' posts.

It is interesting to note that none of their Honours (in the majority or in dissent) considered the extent of control the appellants had to block, limit or delete comments relevant to their determination.

Looking Forward

While the High Court, and the Courts below, placed emphasis on the fact the appellants in these proceedings were media organisations who gained commercial benefit from the Facebook pages, the decision in Voller does not only apply to media organisations hoping to drive traffic to their stories: it also applies to any businesses, not-for-profit organisations, community groups or individuals with a Facebook page or profile.

In the days of "brigading" (the practice of sending a group of people to harass an individual) and "swatting" (falsely reporting an individual to the police in the hopes that a SWAT team or equivalent will descend on that individual's home) on the internet, it does not seem improbable that online trolls may start to target innocent individuals and organisations' posts, making deliberately defamatory statements to try and bring liability to that individual or organisation.

Even run-of-the-mill non-organised trolling could now expose innocent individuals or organisations to liability. This is especially the case given the majority's decisions do not require there to be any connection between the third party's comments and the owner or administrator's post for the owner or administrator to be held to be the publisher. The decisions of the majority do not seem to provide any relief for the innocent individual or organisation who happens to be the subject of the attack, particularly when it is unlikely the trolls will be able to be identified to be brought in as (at least) joint tortfeasors.

Owners and operators of public Facebook pages and other social media pages should use any tools and resources available to them to limit comments to avoid liability, and carefully weigh the benefits of engaging with visitors to their page with the risks of defamation litigation. We have set out below the controls available to owners and administrators of Facebook pages to limit comments.

Owners and administrators of social media pages should continue to monitor this area of law and the ongoing law reforms, and regularly assess their social media policies and risk mitigation strategies.

Law Reform

Gageler and Gordon JJ identified two considerations supporting the continuation of the strict publication rule:

• firstly, it accords with the underlying concern of defamation law, which is to protect against damage to reputation; and
• second, the Commonwealth and State and Territory legislatures have determined for the time being the balance between freedom of communication on the internet and protection of reputation has been appropriately struck through the Broadcasting Services Act 1992 (Cth) and the Defamation Act.

Gageler and Gordon JJ's comments highlight that legislative intervention will be the only way to "fix" the current issues in relation to how defamation law applies to digital platforms and how users of those platforms can receive greater protection. As exemplified by the High Court's decision in Voller, reform will not come from an exploration of the common law.

The decision in Voller underscores the need for urgent law reform. Confirming that anyone involved in the chain of publication, no matter how small their role, and no matter whether they have any knowledge of their role, is a publisher for the purposes of defamation raises an unacceptable threat of liability.

Edelman and Steward JJ's approaches show that it is not necessary to take such a hard line interpretation of the rule in order to protect individuals' reputations: there is a more nuanced path available. Due consideration also needs to be given to the actual role and intention of the participant in the publication. The question should not be about who had a role in the publication, but who should be liable for the publication. Changes to the legislation should reflect this and provide more appropriate protections.

While the first stage of defamation law reform is now complete, digital platforms and users of those platforms are still awaiting the Stage 2 reforms which will deal with internet intermediaries and their liability. Submissions closed on 19 May 2021.

Protecting Yourself

Since the time of the relevant Facebook posts the subject of the decision in Voller, Facebook has increased the strength of controls that page administrators have over the content displayed on their pages. While it is still not possible to block all comments on a page as a blanket rule, on particular posts administrators can choose to limit comments to only those pages or profiles mentioned in the post (i.e. a person will only be able to comment on the post if they are specifically tagged in it when the post is made).

To limit who can comment on a post, after publishing a post:

• click on the three dots in the top right hand corner of the post;
• select "Who can comment on your post?";
• select from the three options: "Public", "Pages you follow", or "Pages or profiles you mention".

If the administrator selects "Pages or profiles you mention", individuals not mentioned in the post will not see a comment button available to them. If no page or profile is mentioned in the post, no comments will be possible.

If administrators of the page want commenting to be possible for those not mentioned in the post (for example to maintain community engagement), other available controls include filtering words and emojis using Facebook's page moderator and profanity filter tools. Entering words and emojis into the page moderator tools will mean any comments incorporating those words or emojis on any post will be hidden from the public, only visible to the page administrator, the individual who commented, and their friends. Administrators can then review the comments and determine if they should be "unhidden" or deleted.

If this option is used, administrators should closely monitor the page for any comments that have bypassed the filter (for example by using alternate spellings of words (e.g. V011er), or through using pictures with text overlaid).

These tools are also available for private individuals' Facebook profiles.

Owners and administrators of Facebook pages and profiles should closely monitor the settings on their Facebook page, as Facebook regularly updates the controls available.

Authors: Robert Todd, Partner; Imogen Loxton, Senior Associate; and Lachlan Wright, Lawyer.