The issue of when Facebook hosts can be liable for defamatory comment posted by users has been a fairly hot issue in Australia in recent years, and it’s relevant to those who use Facebook to promote and discuss our courses.
This has been a hot issue due to a defamation case in which the New South Wales Supreme Court and then, on appeal, the New South Wales Court of Appeal, held that administrators of public Facebook pages can be considered “publishers” of potentially defamatory content posted by members of the public. The Supreme Court and Court of Appeal decisions were handed down in 2019 and 2020. The media outlets that controlled the Facebook pages had argued that they were not “publishers”, but the courts disagreed. The Court of Appeal concluded that, in the case before it, the media outlets maintained Facebook pages and encouraged and facilitated the making of comments by third parties. Those comments, when posted on the page, were made available to Facebook users generally and the media outlets were, therefore, publishers of the comments. What this meant was that, if the comments were in fact defamatory and no other defence applied, then the media outlets could be held liable in defamation for other people’s defamatory comments.
The case was appealed to Australia’s highest court, the High Court of Australia. In September this year, the High Court dismissed the appeal. The majority of the Court decided that the Court of Appeal “was correct to hold that the acts of the [media outlets] in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments”.
This decision puts Australian Facebook page admins on notice that they need to be careful when it comes to dealing with defamatory content posted by others on their Facebook pages.
The Australian case itself is ongoing, in that the plaintiff still needs to establish at trial that the comments were in fact defamatory. If they were, the media outlets are likely to argue that they can rely on the defence of innocent dissemination.
What’s highly significant about the case is that, in Australia, Facebook page admins can no longer argue that they aren’t ‘publishers’ for the purposes of defamation, because the High Court has held they are.
Unsurprisingly, Australian law firms are writing about this case in more detail, as the case is highly significant for Australian businesses that use social media platforms. To read more about the case, take a look at:
- Gilbert + Tobin’s Voller’s case: High Court affirms media are liable for third party comments;
- King & Wood Mallesons’ Who’s paying the toll for online trolls: the High Court in Voller rules on the meaning of “publisher” in defamation law; or
- Johnson Winter & Slattery’s The Voller Appeal: High Court confirms liability for third party Facebook comments.
You can find the High Court of Australia’s judgment here.
