Case Summary and Outcome

The High Court of Australia found that three media companies, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited, and Australian News Channel Pty Ltd, were publishers of defamatory comments made by Facebook users on their public Facebook pages, and therefore could be held accountable for defamation. The case involved Dylan Voller, a former detainee at Don Dale Youth Detention Centre, who brought a defamation claim against these media companies for hosting comments alleging he had committed violent crimes. The media companies appealed the ruling of the NSW Supreme Court and Court of Appeal, arguing that they should not be considered publishers since they did not have the intention to communicate the defamatory material. However, the High Court rejected this argument, emphasizing that defamation is a tort of strict liability, and any act of participation in the communication of a defamatory matter is sufficient to make a defendant a publisher. The Court clarified that the defense of innocent dissemination does not negate the fact of publication, but rather provides an exception to liability for certain defendants who were unaware of the defamatory content.

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Facts

Dylan Voller, a former detainee at Don Dale Youth Detention Centre in the Northern Territory, brought a defamation claim against the Appellants i.e., three media companies, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited, and Australian News Channel Pty Ltd. These companies publish newspapers circulating in New South Wales or operate television stations. They maintain public Facebook pages where they post news content and provide hyperlinks to their website articles.  These pages allow members of the public, who are Facebook users, to comment on the posted content. 

In this case, some Facebook users posted comments alleging that Voller had committed violent crimes, including assault and rape. Voller claims that these comments are false and defamatory under Section 6 of the Defamation Act 2005. He holds the three media companies responsible as “publishers” of these third-party Facebook comments. 

The NSW Supreme Court and later the Court of Appeal held that the media companies could be considered publishers of the comments due to their hosting of the Facebook pages. As a result, they could be held accountable for defamation regarding the comments made by third parties on those pages about Mr. Voller. Dissatisfied with this ruling, the media companies appealed the decision to the High Court of Australia. 

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Decision Overview

Chief Justice Kiefel, Justice Keane, and Justice Gleeson delivered a majority opinion wherein they dismissed the Appeal. Justice Gageler and Justice Gordon in a separate joint judgment dismissed the appeals with costs. Justice Edelman and Justice Steward wrote separate dissenting opinions. The primary issue was whether the media companies can be legally deemed publishers for the defamatory comments made by Facebook users on their public pages.  

The Appellant contended that, according to common law, the publication of defamatory matter requires intention. Merely playing a passive instrumental role in the process of publication is not sufficient to be considered a publisher. According to their view, a person must have the specific intention to communicate the defamatory words in question to be deemed a publisher. The Appellants draw support from the cases of Webb v Bloch and Trkulja v Google LLC, which they believe affirm that intentional participation in the communication of defamatory material constitutes publication.

Although the Appellants did not rely on the statutory defense of innocent dissemination, they contended that cases concerning the common law defense of innocent dissemination, beginning with Emmens v Pottle, also supported the requirement of intention for publication. According to the Appellant’s argument, publication went beyond mere dissemination and involved an element of intention. The Appellants pointed out that the courts did not automatically assume publication in these cases and allowed the defendant to demonstrate a lack of intention to communicate the defamatory matter.  The Appellants maintained that the Courts treated publication as an evidentiary presumption, which could be rebutted if the defendant could prove a lack of knowledge that the matter communicated was defamatory or a lack of intention to communicate it. The Appellant further contended that the Courts determined publication by inferring the occupier’s intention to communicate the matter. However, the Appellants maintained that in the present appeals, there was no deliberate act on their part that would permit an inference of intention, and they should not be considered publishers.

The Court disregarded the Appellant’s contentions on the reasoning that they lack support from established legal authorities and cannot be accepted. 

On the issue of publication and intention in the law of defamation, the Court rejected the contention, emphasizing that defamation is a tort of strict liability, meaning a defendant may be liable even if they did not intend to cause harm to a person’s reputation and acted with reasonable care. The actionable wrong is the act of publication itself, which does not hinge on the defendant’s knowledge or intention regarding the defamatory material. To support the wide operation of the publication rule, the Court referred to the case of Trkulja v Google LLC, where it was clarified that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher. The Court explained that participation in publication can encompass various actions beyond the actual physical distribution of the defamatory material. 

On the pivotal case of Webb v Bloch (1928), the Court reiterated that it elucidates a person’s status as a publisher based on their instrumental or contributory role in the publication of defamatory matters. The Court highlighted that a voluntary act of participation in communication suffices to render a person a publisher, without requiring a specific intention to communicate the material as defamatory. The Court firmly established that the intention to publish a defamatory matter is not a prerequisite for being considered a publisher. Instead, the liability of a person as a publisher depends on their voluntary act of participation in the communication of defamatory material to a third party. The Court’s analysis upheld the broad scope of the publication rule and clarified that a defendant’s knowledge or intention regarding the defamatory content is not determinative of their liability as a publisher.

On the issue of innocent dissemination in defamation law, the Court noted that the strictness of the publication rule called for some relaxation. The common law defense of innocent dissemination originated from the case of Emmens v Pottle, where persons in the business of selling newspapers were held liable as publishers but could avoid liability if they could prove their lack of knowledge about the defamatory content and that such lack of knowledge was not due to their negligence. The defense was later extended to persons in the business of bookselling, circulating libraries, and messengers, as they were considered subordinate publishers who could take advantage of this defense. However, the Court emphasized that the defense of innocent dissemination is not rooted in principle, but rather was developed to mitigate the strictness of the publication rule and avoid potential injustice. 

The Appellant contended that the defense of innocent dissemination transforms publication into a rebuttable presumption, relying on statements in Emmens v Pottle and Vizetelly. However, the Court clarified that these statements acknowledge the strictness of the publication rule and indicate that, but for the defense, the defendants would be liable as publishers. The Court held that innocent dissemination does not result in a finding of no publication; rather, it simply provides an exception to liability for defendants who would otherwise be liable as publishers. The defense does not negate the fact of publication, but rather it absolves defendants from liability as subordinate publishers who were unaware of the defamatory content. 

The Court acknowledged that there had been some confusion surrounding the defense of innocent dissemination. Still, it emphasized that the defense only excludes liability for certain defendants and does not negate the occurrence of publication. The Court cited previous cases and legal authorities to support the view that innocent dissemination does not change the fact that dissemination occurred, but rather it provides a defense for certain defendants who were innocent distributors of the defamatory material. The Court’s analysis clarified the true nature and scope of the defense of innocent dissemination within the law of defamation.

The appellants also relied on the Byrne v Deane case to argue that an occupier may become liable as a publisher of a defamatory statement affixed to their premises if it can be inferred that they intended the publication to continue. In Byrne v Deane, the alleged defamatory verse was placed on the wall of a golf club, and the court considered the issue of publication. The court stated that publication is a question of fact that depends on the circumstances of each case. It was recognized that failure to remove defamatory material might amount to publication in certain circumstances. 

The Court of Appeal in Byrne v Deane pointed out that cases exist where individuals who had not participated in the primary act of publication may still be considered publishers if they adopted and promoted the reading of the defamatory material, thus rendering themselves liable for its publication. The Court clarified that cases like Byrne v Deane do not establish a different rule for publication based on the intention of occupiers, as the appellants claimed. Instead, they involve the application of the general rule of publication to specific circumstances where an individual who has not directly participated in the primary act of publication may still be deemed a publisher. 

In conclusion, the Court rejected the appellants’ argument that Byrne v Deane supports the contention that occupiers must have the intention to publish defamatory material and dismissed the appeal.

Concurring Opinion (Gageler and Gordon JJ.)

In their concurring opinion, Gageler and Gordon JJ. agreed with the majority’s conclusion that the media organizations were publishers of the defamatory comments on their public Facebook pages. They emphasized the strict common law rule regarding “publication” and “publishers” in defamation cases, stating that intentional participation in making defamatory material accessible to others constitutes publication, regardless of the level of involvement or knowledge about the content. Innocent dissemination is considered a defense in defamation cases, but it does not negate the fact that the person involved is a publisher. 

The judges highlighted the importance of maintaining this strict common law rule to protect individuals’ reputations and argued that it aligns Australian defamation law with decisions made in other jurisdictions facing similar challenges in the context of the Internet. They advocated for convergence rather than divergence in addressing emerging global phenomena in defamation law to ensure consistency across different legal systems. By upholding the principle that intentional involvement in making defamatory material available to the public constitutes publication, Gageler and Gordon JJ. reaffirmed the significance of preserving reputation rights and accountability for online content.

Dissenting Opinion (Edelman J.)

In the dissenting opinion, Justice Edelman disagreed with the majority’s approach in holding the appellants liable for defamatory third-party comments posted on their Facebook pages. He argued that for a defendant to be considered a publisher of defamatory content, they must have intentionally performed the act of publication or assisted another with a common intention to publish. Justice Edelman emphasized that the mere act of creating a Facebook page and posting news stories with an invitation to comment does not necessarily indicate an intention to publish unrelated and defamatory third-party comments. He believed that the appellants should only be held liable for comments that are genuinely connected to the posted stories and reflect a manifest common intention to publish such remarks. 

Furthermore, Justice Edelman explained that the principles of innocent dissemination should be reoriented in Australian law to be a true defense, independent of the element of publication. He argued that innocent dissemination should not be considered a negation of publication but rather a separate and valid defense against defamation claims. He also discussed the general principle that a defendant can be liable as a publisher if they assist with a common intention to publish defamatory content. Justice Edelman highlighted the need to apply established tort principles to new media, including social media, and cautioned against distorting these principles to accommodate evolving technologies.

Dissenting Opinion ( Steward J.)

Justice Steward dissented from the majority’s view that the appellants (Facebook page owners) are publishers of all defamatory third-party comments. He would have allowed the appeal in part, determining publication liability only in relation to third party comments which had been “procured, provoked or conduced by posts made by the appellants on their respective Facebook pages.” [p. 71]

He argues that the majority’s reliance on the lack of control over third-party comments is misplaced. Justice Steward contends that the appellants have the ability to control and moderate the content on their Facebook pages, including the power to delete or hide comments. Moreover, he emphasizes that the appellants actively encouraged and facilitated user engagement on their pages, which led to an increase in potentially defamatory comments. In Justice Steward’s view, this active participation makes the appellants publishers of those comments and thus liable for defamation. 

Justice Steward disagrees with the majority’s finding that the appellants’ pursuit of commercial and financial interests does not impact their liability as publishers of third-party comments. He argues that the appellants’ commercial interests create a motive for them to generate posts that attract user engagement, even if it leads to defamatory comments. Justice Steward maintains that the pursuit of such interests should be considered when determining the appellants’ liability as publishers, as it increases the likelihood of defamatory comments being made on their Facebook pages. 

Justice Steward contrasts the appellants’ position with that of a defendant in a previous case involving a television broadcast. He highlights the differences between the appellants, who are users of Facebook, and the defendant in the TV broadcast case, who had more control over the content being aired. He argues that while the appellants may not be the actual conveyors of defamatory material like the defendant in the TV case, they possess the capacity to control and supervise the content on their Facebook pages. Justice Steward concluded that using Facebook does not inherently carry a high risk of defamatory comments, however posts where there is active involvement in generating engagement can incur liability. 

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