High court ruling in Voller defamation case puts media companies firmly in firing line
All eyes were on the high court on Wednesday morning when it delivered its decision in the Voller matter, which will have a significant impact on the defamation law landscape insofar as it relates to the liability of publishers for defamatory comments published by third parties.
In 2017 former Northern Territory youth detainee Dylan Voller successfully argued that media organisations are liable as publishers of third-party comments made in response to articles posted on their public Facebook pages.
The previous position was that persons could only be held liable as publishers after they were on notice of defamatory publications – a requirement that caused defamation lawyers in the digital age to pull their hair out as they tried to give proper notices to platforms and hosts whose locations were not obvious and processes incomprehensible.
At first instance, justice Stephen Rothman in the supreme court of New South Wales found that the media companies were publishers of the thirdparty comments. This decision was affirmed by the NSW court of appeal, which, by a majority decision of justice Anthony Meagher and acting justice Carolyn Simpson, said the media organisations were publishers from the outset because they invited the comments on their Facebook pages. It was irrelevant that the comments had been removed by the media organisations after notice was given.
The decision was appealed to the high court and special leave was granted in December 2020. By a 5-2 majority, the court refused the appeal of the media organisations, rejecting the argument that for a party to be a publisher it had to know of the defamatory matter and intend to convey it.
The dissenting judges, justices Edelman and justice Steward, placed a condition on liability being that the comment of the third party had to be connected to the material posted. Justice Steward required the third-party comment to have been procured, provoked or conduced by the original post.
The high court’s ruling means the case will now return to lower courts to determine whether Voller was defamed and potential damages.
Justice Rothman’s decision was seen as controversial at the time. Many media lawyers believed that his honour had gone too far. His decision was seen as unfair to those who operated those public pages who, because of the functionality of Facebook, were unable to turn off public comments.
But for the most part, justice Rothman’s decision resonated with many legal practitioners acting for aggrieved parties against parties who operate commercial platforms or accounts for the purpose of engaging with the many millions of Australians who are active on social media.
Digital engagement forms the basis of business models for news organisations, many businesses and public figures. It is arguably the most important metric for those in the business of providing digital content. How often do we see organisations like Google encourage internet users to “share their experience” of a business or an influencer pose a controversial topic on Instagram for discussion? Reputations are torn to shreds by the Twitterati on a daily basis.
Justices Gaegler and Gordon in their joint judgment found that the attempt by the media organisations to “portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”
This is an important point that is often made by defamation lawyers. Where a person uses a digital platform for commercial benefit and that platform or page hosts content that has unlawfully defamed a person, why should they not be held legally responsible? Why aren’t resources devoted to proper moderation and removal processes? Any person who has reported online defamatory comment would agree that it is a difficult, frustrating and often unproductive process.
The law is now clear. Where a party encourages, facilitates and thereby assists in the publication of third-party comments, they will be at law the publisher of those comments. While that party will be able to raise the many defences available to a publisher which may allow them to escape ultimate liability, it places them firmly in the firing line.
While Voller involved parties engaged in the business of commercial digital engagement, this historic decision has equal application for anyone operating a digital platform or social media account where comment is encouraged and facilitated.
It is a decision that will be particularly welcomed by aggrieved parties who are faced with cowardly attacks by anonymous users – a practice that is sadly commonplace in the digital age.
Rebekah Giles is the principal of reputational risk law firm Company Giles