In brief 4 min read
In a recent decision, the NSW Supreme Court, found that a company can be considered a publisher of allegedly defamatory comments posted by members of the public on its Facebook page. This puts the onus squarely on administrators of public social media pages to monitor and moderate comments from followers.
Whether 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?
Dylan Voller's treatment in detention at the Don Dale Youth Detention Centre received widespread media attention in 2016, and sparked the Royal Commission into the Protection and Detention of Children in the Northern Territory. Many media outlets published articles about Mr Voller, and posted links to those articles on their social media pages. Newspapers owned by Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd did exactly this on their public Facebook pages. Mr Voller brought defamation proceedings in the NSW Supreme Court against these three media outlets, alleging that comments made by members of the public on their posts were defamatory. In these unusual circumstances, the court was asked to determine the preliminary question: whether 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?
There was no dispute that each of the media outlets maintains a public Facebook page for its own commercial ends, and encourages members of the public to engage with the content published on those pages. Each media outlet makes considered choices regarding what content to post on its Facebook page, and, at least to some extent, monitors the responses to that content by members of the public.
Key to the case was the evidence heard by the court about the administration of public Facebook pages. Namely:
- administrators of public Facebook pages can hide or delete comments;
- a hidden comment can only been seen by the person who wrote it, their Facebook friends and the administrator of the public page;
- a deleted comment is permanently removed from the public Facebook page; and
- using the various administrative tools made available by Facebook, the administrator of a public Facebook page can:
- prevent any comments from being made on the page at all;
- hide all comments until they are released or approved by the administrator; or
- hide comments containing particular keywords until unhidden by the administrator.
It was this ability to prevent or hide comments that led Justice Rothman to conclude that each of the media outlets was responsible for publishing (ie making public, rather than writing) the comments made by third parties on their Facebook pages. The court reasoned that it is the media outlet administering a public Facebook page that allows access to the comments written by members of the public to the world at large. If the administrator hid all comments until they were moderated and approved, the comments could only be viewed by the original commentator, their Facebook friends and the administrator. By choosing not to hide comments, the media outlets were publishing those comments (and were the first and only publisher of the comments) to everyone outside of that limited circle of people. Justice Rothman found that 'the extended publication of the comments is wholly in the hands of the media company that owns the public Facebook page'.
Consequently, the court answered in the affirmative the question posed by the parties. Regarding the general public, the media outlets operating the public Facebook pages are the first and primary publishers of comments made by third parties on their posts. Regarding the Facebook friends of the original commentator, the media outlets would probably be a secondary or subordinate publisher.
This decision has consequences for all businesses running a public Facebook page. The media outlets were found to be publishers of the third-party comments despite evidence that they:
- have no control over the contents of comments before they are posted;
- cannot predict how users will respond to their posts; and
- would require significant additional resources to screen every single comment posted by a third party.
According to the court, each of the media outlets had the means to delay publication of comments and moderate them. The fact that such a process is cumbersome does not absolve a company of responsibility. Importantly, if the administrator of the Facebook page is considered a primary publisher, it cannot rely on the defence of innocent dissemination, which is only available to subordinate publishers.
The court seems to suggest that administrators of every public Facebook page should monitor and moderate each comment made on their page, by hiding, reviewing and (if appropriate) unhiding comments. The time and cost of doing so could put significant pressure on a company's social media engagement team. If businesses choose not to invest the resources in monitoring and moderating comments from the public, they risk being held liable for the statements made by their followers. It seems that even in the online world, companies can still be caught between a rock and hard place.