Last week the High Court of Australia handed down a decision in the long-running matter of Fairfax Media Publications Pty v Voller, Nationwide News Pty Ltd v Voller, Australian News Channel Pty Ltd v Voller  HCA 27.
In 2016 alarming footage of a minor was broadcast in a television segment which exposed the mistreatment that individuals were facing in youth detention centres throughout the Northern Territory. Shortly after the segment was aired, the federal government announced that a royal commission into the abuse of incarcerated minors in juvenile centres would be established.
Dylan Voller, the subject of the footage, commenced proceedings against various media companies in 2017 on the basis that he had been defamed by comments made on their social media pages in response to the findings of the royal commission. In particular, Mr Voller claims that the comments carried various false and defamatory imputations, including that he physically assaulted a volunteer who visited him while incarcerated and that he is a perpetrator of sexual assault.
In the primary decision, Justice Rothman of the Supreme Court of New South Wales determined that the defendants, Fairfax Media Publications, Nationwide News and Australian News Channel, were liable as publishers of comments posted to their public Facebook pages by third party users. In doing so, his Honour affirmed that Mr Voller had established the publication element required in defamation claims.
The decision was then appealed to the New South Wales Court of Appeal which upheld Justice Rothman’s judgment.
Subsequently, the defendants sought special leave to appeal to the High Court.
On 8 September 2021 the High Court by a majority dismissed the appeal brought by the media company defendants. In a landmark decision, the High Court confirmed that the media companies are publishers of third-party comments made on their public social media pages and as such may be liable for the content the third-party users post.
In doing so, the High Court rejected the argument put forward by the media companies that the element of defamatory publication required an ‘intent to defame’. Instead, the High Court focused on the concept of ‘intent to publish’ by the media companies, finding that each media company effectively assisted in the publication of the comments by creating public-facing pages and posting content within said pages.
Now that the issue of publication liability has been resolved, the matter will return to the Supreme Court of New South Wales to determine if the third-party comments were indeed defamatory, i.e. whether the comments effectively damaged Mr Voller’s reputation in accordance with the Defamation Act (2005) NSW.
Following the Voller decision, we are likely to see a change in the ways that public-facing social media pages are operated in Australia. As individuals and businesses may be liable for comments made by third party users even if they don’t agree with those comments, the ability to engage with content and facilitate public discussion may be reduced in order to minimise this newfound risk.
It is understandable that parties who operate Facebook pages may now be concerned about their liability in relation to third party users. However, it is important to note that the findings of the High Court are not restricted to Facebook users. Individuals and companies using all social media platforms to share content and facilitate engagement by others may need to consider how they moderate and operate their pages moving forward.