Fairfax Media and Ors v Voller

The High Court of Australia’s recent decision in Voller[1] has caused a ‘stir’ within social media circles and defamation lawyers alike and for good reason.  It places individuals and corporations who operate social media platforms that encourage or facilitate third party comments in the ‘firing line’ for potential defamation claims.

The Appellants, three media companies (Fairfax Media Publications P/L, Nationwide News P/L and Australian News Channel P/L), posted links to articles about Mr Dylan Voller, to their public Facebook pages.  Members of the public responded to those posts with ‘unflattering’ comments. Whilst the posts of themselves were not alleged to be defamatory, the comments of those responding to the posts were considered so. Mr Voller commenced defamation proceedings against the Appellants, rather than the individuals who posted the comments, alleging that the Appellants were liable for defamation as ‘publishers’ of the third party comments.

In 2019, Mr Voller was successful at first instance in the Supreme Court of New South Wales and subsequently in the New South Wales Court of Appeal in 2020, on the question of whether the ‘publication’ element of the cause of action had been established.  It was found that the Appellants were publishers of comments made by third parties and thereby liable for them.  The matter was then appealed to the High Court.

The Appellants’ core submissions were that an element of ‘intention’ was relevant to the publication of defamatory matter which required some form of active participation. It was contended that the Appellants merely administered a public Facebook page on which third parties published material”[2] and that to be a ‘publisher’, they “must know of the relevant defamatory matter and intend to convey it.”[3] These arguments were rejected.

By a majority of 5:2, the High Court upheld the decision of the New South Wales Court of Appeal and dismissed the Appellants’ appeal with costs.  In a joint judgment, Chief Justice Kiefel, Justice Keane and Justice Gleeson found that the Appellants were publishers of the third party comments due to the Appellants’ acts in “facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users.”[4]

In a separate judgment, Justices Gageler and Gordon closely examined the act of publication and noted that given the commercial benefit arising from the publication of comments from third parties on a public Facebook page, it was unrealistic for the Appellants to portray themselves as “passive and unwitting victims of Facebook’s functionality.”

Justices Edelman and Steward, both in dissent and providing separate reasons, rejected the position of the majority, focussing on the nature of the comments and the connection and relevancy of those comments to the subject matter of the posted story. 

The matter now returns to the Supreme Court of New South Wales for determination of whether the Appellants are liable for defamation of Mr Voller and consequently, consideration of any potential defences that may be available to the Appellants, including the defence of innocent dissemination.

So, what does this all mean?

There has been a noticeable rise in social media use and the advent of various platforms to rate or provide feedback on professionals and their services.  Negative commentary in these forums has the potential to cause serious and irreparable harm to reputation and potentially found a defamation action.

This decision has far reaching implications for individuals and corporations who operate such platforms that could be seen to encourage, invite or facilitate third party comments. This is not restricted to Facebook, but would include other social media platforms such as Twitter, Instagram and the less obvious ‘humble’ website with a comments section.

For professionals or clients that have been potentially defamed, arguably the range of potential ‘defendants’ to a defamation action have widened and could include for example, the administrator of a private Facebook group or website owner in addition or instead of the ‘internet troll’ who made the defamatory comment. Requests to remove offending material will likely be considered more seriously and result in swift action being taken in light of this decision.

As for social media administrators, they must pay close attention to user comments and promptly remove any that might be potentially harmful, which depending on the size of the readership or ‘followers’ might be impractical.  The recommended approach is to utilise available tools to proactively reduce risk by managing the availability of third party content, for example, by disabling comment features altogether or moderating comments with filters (ie. excluding key words) or vetting comments or posts prior publication.  However, with this approach, user interaction will decrease substantially and impact upon those who rely upon audience engagement to generate revenue.

Whilst it could be argued that ‘free speech’ will be curtailed (for now or until there is legislative reform that affords protection), increased accountability will likely see greater care exercised on the World Wide Web, particularly where a professional’s reputation is concerned.

Further information / assistance regarding the issues raised in this article is available from the author, Christine Houston –PartnerEmmelene Gray– Special Counsel or your usual contact at Moray & Agnew.

[1] Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27.

[2] At 3 [13].

[3] At 7 [26].

[4] At 15 [55].