Media Liable For Defamatory Comments By Third Party Users In Its Facebook Page: Australia High Court

The High Court of Australia held that a media company can be held liable for defamatory comments made by the third party users in its Facebook page.

By the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, the court held while dismissing the appeal filed by three media companies.

The court noted that these media companies became publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. They became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user, the court held.

In their respective Facebook pages, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd posted news stories related to a person named Dylan Voller about his incarceration in a juvenile justice detention centre. Many third-party Facebook users posted comments under it which were allegedly defamatory of Voller. He brought proceedings against the media companies alleging that they were liable for defamation as the publishers of those comments. The Primary judge held that Voller had "established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users".  This finding was upheld by the Court of Appeal.

The High Court (5:2 majority), dismissing their appeal, rejected the media companies' argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey.

"An action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care . The intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher's liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate ", the judgment by Chief Justice Kiefel and Justices Keane and Gleeson reads.

The court noted that these media companies intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. "The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.", the judgment by Justices Gageler and Gordon noted.

Justice Steward dissented and opined that merely allowing third-party access to one's Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all the third-party comments posted thereafter. "Were it not so, all Facebook page owners, whether public or private, would be publishers of third-party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredicted. Indeed, it might extend to cases where a Facebook page is hacked and then has posted on it entirely unwelcome, uninvited and vile defamatory comments, whether by the hacker or in response to a post made by the hacker. It might also render Facebook itself, at common law, the publisher of all posts made on Facebook. It follows, and leaving aside cases in which a third-party comment is adopted by a Facebook page owner, that there must be something about the content, nature or circumstances of a Facebook post that justifies a conclusion that it has procured, provoked or conduced a defamatory third-party comment or comments, such as to make the owner the publisher of such comments.", the judge observed. 

Justice Edelman also opined that the media companies cannot be termed as publishers of such uninvited words written on their Facebook pages. "By merely creating a page and posting a story with an invitation to comment on the story (an invitation which the appellants could not then disable), the appellants did not manifest any intention, nor any common purpose with the author of the comment, to publish words that are entirely unrelated to the posted story. Such unrelated words would not be in pursuance of, or in response to, the invitation.", he added.

Case: Fairfax Media Publications Pty Ltd vs. Dylan Voller 

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