In Fairfax Media Publications & ors v Voller [2021] HCA 27, the highest Court in Australia found that newspapers publishing articles on Facebook are liable for any defamatory statements made by readers commenting on their articles.
Background
Fairfax Media and two other media companies published news stories referring to Mr Voller, including posts concerning his incarceration in a juvenile justice detention centre. The stories were published on Fairfax’s Facebook page. A number of readers made derogatory comments about Mr Voller. Mr Voller sued Fairfax and two other companies alleging that they were liable as publishers of those comments. He won the argument in the primary court, the Court of Appeal and in the High Court.
The arguments
Fairfax argued that they did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication. Their position was that they merely administered a public Facebook page on which third parties published material. They submitted to the Court of Appeal that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.
The Court rejected their argument. The Court of Appeal found that Fairfax facilitated the making of comments by third parties which then became available to others. In fact, Fairfax invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might avail themselves of it. That proved the element of “publication”.
Fairfax appealed the decision to the High Court (the highest Court of Australia). In the appeal to the HCA, Fairfax argued that publication is more than mere dissemination, that publication is dissemination with an element of intention. The HCA rejected this argument and thought that Fairfax’s attempt to portray themselves as passive and unwitting victims of Facebook’s functionality had “an air of unreality”.
The Court ultimately held that Fairfax facilitated, encouraged and thereby assisted the posting of comments by the third-party Facebook users, and this rendered them publishers of those comments.
The position in New Zealand
This decision raises concerns and opens the possibility of significant liability for corporations that have social media pages. It is unclear whether the New Zealand courts would follow the Australian decision. In the meantime, organisations that have a Facebook page (or other social media pages) should proceed with care and scrutinise the comments made by readers on their social media pages.
