Clever Use of the Power to Order Pre-Action Discovery
The New South Wales Supreme Court has ordered Channel Nine to provide a draft story to a plaintiff…
The High Court has found that media outlets Fairfax, Nationwide News and Australian News Channel are the ‘publishers’ of allegedly defamatory comments left by third parties on Facebook pages that they controlled. However, it remains to be decided if they can avail themselves of the defence of innocent dissemination and, if not, the quantum of any damages.
Under defamation law, ‘publisher’ is a term of art and generally applies to anyone voluntarily involved in the communication of a defamatory statement. This decision extends that reach to operators of Facebook pages and is likely to apply to all websites and social media accounts operated by businesses that encourage comments from the public.
Dylan Voller is one of the young men whose treatment in custody at the Northern Territory’s Don Dale Youth Detention Centre led to the 2016 Royal Commission into the Protection and Detention of Children.
Fairfax, Nationwide News and the Australian New Channel each included links to their stories about Mr Voller on their respective Facebook pages. Members of the public left allegedly defamatory comments in response to these Facebook posts.
At the time, the ‘comment’ function was a standard feature of the Facebook service and page moderators had no control over this service. In particular, page moderators could not disable comments or delete all comments except indirectly by applying an extremely long list of ‘moderated words’.
There is a line of defamation cases concerning graffiti and similar comments left on buildings. In those instances, the building owner only becomes a ‘publisher’ when the owner can be said to have been aware of the graffiti and to have promoted it by failing to remove it. The High Court distinguished Facebook pages from this situation on the basis that the news organisations each:
It was also noteworthy that third-party comments were found to be one of the most important aspects of a public Facebook page.
As a result, each news organisation was a ‘publisher’ of each third-party comment as and when that comment was accessible by another Facebook user.
It was not relevant that the news organisations had no control over the Facebook platform or that the ‘comment’ function could not (at that time) be disabled.
The High Court confirmed that where a publisher establishes ‘innocent dissemination’, it will still be considered a ‘publisher’, but will not be liable for the defamatory content.
Key takeaway for business owners
All businesses hosting or facilitating online forums, websites and social media pages which allow public comments are likely to be considered to have ‘published’ those comments and may therefore be liable for defamatory comments made on such sites.
In light of this, businesses should have an appropriate risk minimisation framework in place to cover the operation of their social media pages, and any of its other online sites which allow users to post content. Ideally, this framework would include moderation and control mechanisms to vet and approve third-party comments before they are published. Failing that, businesses should track, vet, review and amend or remove problematic posts and comments quickly. There should also be a clear take-down policy that governs how the business responds to any complaint made in relation to any third-party comment posted on its social media pages or online forums.