Case Summary and Outcome

The Supreme Court of New South Wales held that media companies could be considered publishers of comments left by third-party users on their public Facebook pages. Nationwide News, Fairfax Media Publications, and Australian News Channel shared links to theirs stories about Dylan Voller, a juvenile who was mistreated at a detention facility, on their Facebook pages. Some third-party users commented on these stories and alleged that Mr. Voller was a violent criminal. Mr. Voller found that these comments were defamatory and sued the media companies. The Court, relying on jurisprudence from Australia and other Commonwealth countries, concluded that by maintaining Facebook pages, the media companies made it possible for defamatory comments to become visible and harm Mr. Voller. Furthermore, the media companies should have been aware that stories about Mr. Voller would have led to defamatory comments, but failed to make such an assessment and to act to prevent them. The Court was particularly adamant that the media companies had the technical and resource capacity to moderate and even hide all comments before they became visible, but failed to do it. The Court also dismissed a freedom of expression argument, finding that the media companies maintained Facebook pages for purely financial gain.

Facts

In 2016, the Australian Broadcasting Corporation aired an investigative report about the mistreatment of Dylan Voller in the Don Dale youth detention center. The program attracted public attention and led to a government investigation into the detention center’s treatment of juveniles.

Media companies, including Nationwide News, Fairfax Media, and Australian News Channel produced additional stories about Mr. Voller. The media companies published links to these stories on their public Facebook pages. Facebook users commented on the stories and some alleged that Mr. Voller committed violent crimes, including assault and rape.

Mr. Voller claimed that these comments were false and sued the three media companies for defamation, alleging that they were “publishers” of third-party Facebook comments. It should be noted that Mr. Voller did not allege that the companies were negligent in allowing the comments to remain on Facebook or failing to delete them.

The media companies argued that Mr. Voller misunderstood the definition of a “publisher.”

Decision Overview

The issue before the court was whether Facebook comments by third-party users constituted a publication by the media companies.

The Supreme Court of New South Wales began by reviewing the facts of the case, largely focusing on the management of the media companies’ Facebook pages. The facts that court found relevant were:

• Media companies post articles they produce on their public Facebook pages. These posts include a link to the story, an image, and headline and a brief comment about the article. The posts link back to the full article on the websites of the media companies.
• The media companies use Facebook pages for a number of purposes, including sharing summaries or articles, exciting the interest of Facebook users, increasing digital subscriptions, and increasing the popularity of a Facebook page.
• Facebook uses algorithms to measure users’ interests and suggests articles to users on the basis of their interest in a certain topic.
• The three media companies employ social media managers or administrators who post articles and monitor proper behavior on Facebook pages. These administrators post between several to dozens of articles daily that sometimes received thousands of comments.
• Administrators of Facebook pages have the ability to hide comments or to delete comments. When an administrator hides a comment, the comment will be visible in grey to the Administrator and to the person who wrote it.
• Facebook can automatically delete or block any publication that includes certain banned words or phrases. Owners of Facebook pages can choose to activate this option. This blocking mechanism is not perfect and can be overcome by the use of a synonym that is not flagged. The Administrator can unhide automatically blocked comments. The Administrator may also turn off the option to automatically hide comments.
• It is impossible to prevent in advance the publication of any comment fully. The administrator could technically block most comments by creating a filter with extremely common words (“the”, “a”, “you”, etc.)
• With sufficient resources, the media companies can review comments individually before their publication and unhide them.
• The media companies assess whether the language of their posts is Facebook appropriate and whether it will generate comments, but do not consider the types of comments a post may generate.

The Supreme Court then reviewed case law from Australia and other commonwealth countries relevant to the case. It began by looking at case law that defined the meaning of a “publication” and recalled the judgment in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 (“Gutnick”) rendered by the High Court of Australia. The High Court concluded that it was irrelevant if the publisher of defamatory material intended injury to reputation or acted with reasonable care. “It [was] the publication of the material, not its composition, which [was] the actionable wrong.” (para. 98) Further, according to Gutnick an action for defamation arises when there is a publication of comprehensible material in a location where the plaintiff has a reputation. Using an illustrative example, the Supreme Court explained that a book that no one sees or reads cannot harm reputation. Applying this principle to Facebook, it reasoned that the author of a comment is not its publisher, rather it is the entity or individual that publishes the comment in a comprehensible form. Thus, a publication occurs “by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page.” (para. 106)

Moreover, the New South Wales Court noted that a comment on a Facebook page “authored by the third-party user is not published until such time as the owner of the public Facebook page allows persons to read it. In the words of the High Court in Gutnick, “it is the owners of the public Facebook page that would render the material comprehensible and allow it to be downloaded.” (para. 114) The Court added that since Facebook page administrators can delete or hide comments, “the extended publication of the comment is wholly in the hands of the media company that owns the public Facebook page.” (para. 116) In other words, since administrators have the capability to review, hide or delete comments, they have effective control over their publication.

The court in Gutnick called for striking of a balance between society’s interest in freedom of expression and the right to reputation. However, according to the presiding court, the media companies’ maintenance of public Facebook pages had little to do with freedom of speech or the exchange of ideas, and more with commercial interests – the primary purpose of the pages was to increase the audience of the companies’ actual websites and optimize advertising revenue.

The New South Wales court then reviewed the applicability of Google Inc v Duffy that dealt with Google’s liability for defamation for search results that its search engine produced. The Court noted that unlike in Duffy, where Google could not filter or hide all search results, here Facebook page administrators had the technical capacity to hide substantially all comments written by third-party users and to vet them prior to publication. The Court added that there was greater public policy interest to treat a webpage host as a subordinate publisher, as distinct from a primary publisher, if the webpage host had no capacity to vet postings in advance of their publication.

Additionally, Duffy established that “the manager of a webpage which commonly attracts defamatory material may, prospectively, be attributed with notice, or treated as the primary publisher of, defamatory comments he has knowingly or recklessly encouraged or allowed.” [para. 129] This was particularly relevant to the case at hand because had the three media companies assessed the likely reactions to sharing Voller stories on Facebook, they would have known to expect defamatory comments. The Court concluded that the media companies could not escape “the likely consequences of its action by turning a blind eye to it. Where a defendant’s assessment of the consequences of allowing comment, if performed, would have been that defamatory material will be published… the defendant, in that situation, is on notice.” (para. 231)

Referencing Murray v Wishart [2014] 3 NZLR 722, a case from the New Zealand Court of Appeal, the New South Wales Court argued that a Facebook page administrator could be considered a publisher of third-party defamatory comments because he monitored the page and frequently removed posts he thought were unacceptable.  The presiding court also found relevant the New Zealand Court’s differentiation and disapproval of “the analogy between the host of a Facebook page with which they were presently concerned and a news vendor. The host of a Facebook page, they commented, provides the actual medium of publication and the role of a Facebook page host in the publication is completed before publication occurs. On the other hand, a news vendor is a publisher only because the vendor has a role in distributing the newspaper itself.” (para. 157)

The Supreme Court of New South Wales thus concluded that the three media companies, not the authors of the comments, were the primary publishers of the alleged defamatory material. In the words of the court “[e]ach defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.” (para. 224) In operating Facebook pages for commercial ends, the media companies assumed the risk that comments made on it would render it liable. The Court suggested that this risk could be ameliorated by hiding all comments prior to publication, and un-hiding them after approval.

This is a first instance decision which may be subject to appeal.