Administrators are 'publishers' 6 min read
The High Court has confirmed that the administrators of public social media pages are 'publishers' of comments posted by third parties and members of the public on their page, for the purposes of defamation law.
Any business that hosts a public social media page, or has a comments function on their own website, should review its social media engagement processes and monitor and moderate comments to avoid the risk of liability for defamation.
Key takeaways
- The news outlets in this case were found to be 'publishers' of user comments because, by hosting a public Facebook page and posting material which could be commented on, they facilitated and encouraged the communication.
- This decision affects any business operating a public social media page or forum/website with a public comments function – it is relevant to businesses other than media outlets, and to content posted on platforms other than Facebook.
- It is no excuse that moderating every single comment would significantly increase compliance costs. Social media is an integral operational and promotional tool for many businesses, but by choosing to host and take the 'commercial benefit' of a public social media site, the business bears the legal consequences.
- Businesses should consider their options for hiding or moderating comments and content – Facebook recently introduced the ability to turn off the comment function.
- The High Court did not address the substantive issues in this case, so the news outlets may still be able to rely on the defence of innocent dissemination. While the door was left open to defences, this decision confirms that the administrator of a page can be sued for defamatory comments posted to the page by a third party.
- This issue is currently under review by state and territory legislators, so the position may be altered by statute in the future.
Who in your organisation needs to know about this?
- Marketing and social media teams should be aware of this development – businesses may wish to consider whether they need comment moderators.
- Legal, risk and compliance teams.
Background
This judgment was the third in a string of decisions relating to comments made by members of the public on social media about Dylan Voller, whose treatment in the Don Dale Youth Detention Centre received widespread media attention in 2016. Various news outlets posted links to stories about Mr Voller on their public Facebook pages.
Mr Voller commenced defamation proceedings against the news outlets for the comments made about the articles by members of the public. To be able to bring proceedings against the news outlets (rather than the commenters), Mr Voller had to establish that the news outlets were 'publishers' of those comments. The primary judge ordered that this question be decided separately.
We previously reported on the NSW Supreme Court ruling and the subsequent Court of Appeal decision, where the news outlets were held to be publishers of the comments.
The High Court has now settled the issue, finding by a 5-2 majority that the news outlets were publishers of the comments made on their page by third parties, even though the outlets had no control over the content of the comments.
The majority judgments
The news outlets argued that to be a publisher of the comments, they needed to have known of the defamatory matter and intended to convey it. But the majority, in two separate judgments, rejected this, stating that under Australian law a defendant may be a publisher even though they did not intend to damage or injure someone's reputation, and that a publisher can defame even if they are unaware of the defamatory matter. By intentionally publishing a public Facebook page with material and links which allowed for third-party comments, the outlets had facilitated, encouraged and thereby assisted the publication of the comments. This was sufficient for the outlets to be classified as publishers.
Justices Gageler and Gordon went so far as to say that the attempts of the news outlets 'to portray themselves as passive and unwitting victims of Facebook's [commenting] functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences'. On this basis, their Honours distinguished this case from others in which courts have found that the owner of premises will only 'publish' material graffitied on a wall, or posted on a noticeboard, if they allow the material to remain in place after becoming aware of it.
The dissenters
Justice Edelman and Justice Steward, in separate judgments, said the issue was not so black and white. For Justice Edelman, the third-party comment would need to be 'connected' to, and be a 'genuine comment' on, the material posted for the page administrator to be a publisher. His Honour said that page administrators should not be deemed as publishers of comments that were irrelevant, or only had a remote or tenuous connection, to the original content.
For Justice Steward, each case must turn on its own facts, and the page administrator would need to have 'procured, provoked or conduced' the comment by the original post. His Honour likened a public Facebook page to a public meeting that takes place on the Internet, and said the convenor of a public meeting is not the publisher of another's speech unless they contributed to its making or assented to it.
It will be interesting to see if either of these approaches are advocated for, or considered, in the current defamation legislation reform process, described below.
Defence of innocent dissemination
As in the Court of Appeal decision, the High Court did not consider the innocent dissemination defence because it was not part of the 'separate question' on appeal. Under this defence, a publisher of defamatory material will not be held liable if they acted in the capacity of a 'subordinate distributor' of the material, and neither knew, nor ought reasonably to have known, the material was defamatory. This defence could become critical in future cases where the page administrator, rather than the commenter, is sued.
The High Court's decision means that Mr Voller's defamation case can proceed, and the NSW Supreme Court will now consider if the comments were actually defamatory, and whether the news outlets can rely on any defences, including the innocent dissemination defence, which they will have the opportunity to raise.
Changes to Facebook and the law
At the time the comments in this case were published, Facebook did not allow page administrators to turn off the comment function. Facebook has since changed this and given administrators more control. Instagram and Twitter also have comment restriction functions. Businesses may now look to use these functions more frequently. Prospective plaintiffs are more likely to pursue a defamation suit against a page administrator than individual commenters, as the administrator will usually be a business with 'deeper pockets'.
Reforms to defamation legislation in most states and territories may also reduce the risk of page administrators being sued for third-party comments. The Model Defamation Amendment Provisions, which were the result of Stage 1 of the reform process, were introduced on 1 July 2021 in NSW, QLD, SA, Victoria and the ACT (with the other states to follow soon). The changes introduced a serious harm threshold, meaning a plaintiff must establish they have suffered, or are likely to suffer, serious harm to their reputation as a result of a defamatory statement. Additionally, a prospective plaintiff must now send a 'concerns notice' to the publisher and wait at least two weeks before they are allowed to commence proceedings, giving the publisher an opportunity to make an offer of amends and settle the claim.
Stage 2 of the reform process, currently underway, is looking at liability for the publication of third-party content. The Discussion Paper for Stage 2 referred to the two prior Voller decisions, and sought submissions on the status and liability of forum administrators and content hosts in scenarios such as this. It may be the case that the legislation is amended to alter the position taken in this High Court decision, so affected businesses should follow the reform process closely.