29 August, 2019
Voller v Nationwide News Pty Ltd [2019] NSWSC 766
What you need to know
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Operators1 of public Facebook pages may be liable for defamatory third party comments published on those Facebook pages in response to Facebook posts. The same applies to the operators of other social media pages and platforms that have similar functionality to Facebook.
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The operators of public Facebook pages should exercise caution in determining what posts to upload to their Facebook pages, and implement all controls available to them to moderate and, if necessary, delete comments on their pages. This is particularly important for posts that are likely to attract defamatory comments.
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This article attaches a flowchart guide to the essential things that you need to consider before posting content to Facebook and in monitoring third party comments.
Companies and individuals that create social media pages on platforms such as Facebook are now likely to be liable in defamation for comments made by others left on their page.
On 24 June 2019, Justice Rothman handed down an interlocutory judgment in Voller. In that judgment, Justice Rothman found that Nationwide News, Fairfax Media and the Australian News Channel were liable for the publication of comments made by third parties on public Facebook pages owned and administrated by them. The judgment is the first decision by an Australian court concerning this issue.
Background
Dylan Voller, the plaintiff, was a detainee of the Don Dale Youth Detention Centre. In July 2016, a Four Corners program entitled "Australia's Shame" featured graphic footage of Mr Voller being restrained in a chair and subject to other maltreatment by guards of the detention centre. The Four Corners program was the impetus for a Royal Commission into the treatment of youth in the child protection and youth detention systems in the Northern Territory. Since the program was broadcast, Mr Voller has attracted significant media attention and generated public debate.
Between 2016 and 2017, Nationwide News, Fairfax Media and the Australian News Channel (the defendants) published several articles concerning the plaintiff in hard copy and online. The online articles were uploaded to Facebook pages owned and operated by each respective defendant. Members of the public commented on the articles using the functionality of the Facebook platform, and Mr Voller alleged that certain of those comments were defamatory. Rather than suing each of the defendants for their role in publishing the articles online, Mr Voller brought a defamation action against the defendants for the allegedly defamatory comments made by the public in response to each of the articles uploaded to Facebook.
An Australian first
The Voller proceedings are the first proceedings in Australia concerning the defamation liability of media companies for comments posted on their Facebook pages. In light of the novel legal issue to be tried, the parties agreed that the Court should rule upon a preliminary question of whether the defendants could be considered to have published the comments for the purpose of defamation law. The parties agreed the following phrasing for the question:
Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users that are alleged to be defamatory?
In order to resolve the question, his Honour considered evidence from all of the parties about the operation and purpose of the defendants' Facebook pages. His Honour did not need to consider whether the comments in question were defamatory, or whether the defendants had any relevant defences available to them. Such determinations will be made after the final hearing.
The applicable legal principles for publishers
In order to determine whether each of the defendants were publishers of the comments, it was first necessary for the Court to opine upon the legal principles that are applicable to publishers' liability in Australia and apply those principles to the defendants' conduct.
First, it is well established that everyone involved in conveying defamatory material to an audience other than the plaintiff is a publisher for the purposes of an action in defamation. Depending on their position and involvement in the chain of publication, a person will either be a primary (or "first") publisher or a secondary (or "subordinate") publisher.
Secondly, different characteristics will determine whether a publisher should be categorised as a primary or a secondary publisher. Those characteristics include the degree to which the publisher is an active or passive participant in the publication of the material, the degree of editorial control over the material before it is published, and the degree to which a publisher has actual or constructive knowledge of the existence of the defamatory material the subject of an action.
Justice Rothman found that, in the case of both primary and secondary publishers, knowledge of the existence of the defamatory material is presumed. However, in the case of a secondary publisher, the presumption of knowledge can be rebutted if the publisher shows that they did not know and could not reasonably have known that either the defamatory material had been published, or that the disseminated material contained defamatory words (otherwise known as the innocent dissemination defence). In taking this position, Justice Rothman agreed with the dissenting judgment of Kourakis CJ in Google Inc v Duffy (2017) 129 SASR 304.
Thirdly, where a secondary publisher is able to rebut the presumption of knowledge, they will not be liable for defamation. The fact that they may ultimately be able to rebut the presumption of knowledge does not negate their status as publishers, and only impacts upon their liability.
The Defendants' liability for Facebook comments
In applying the legal principles above, Justice Rothman found that the defendants were primary publishers of the comments uploaded in response to posts on public Facebook pages owned and administrated by them and thereby not entitled to the defence of innocent dissemination.
His Honour held that a combination of factors were relevant to determining the defendants' status as primary publishers, including the 'public' status and function of the defendants' Facebook pages, the defendants' capability to monitor comments, and their control and assessment of Facebook posts. Seemingly decisive to his Honour's judgment was the ability of the defendants to "vet" comments before they are published, which equates to a degree of editorial control. We discuss his Honour's findings on each of these matters below.
Justice Rothman further stated that, should he be wrong about his determination that operators of public Facebook pages are primary publishers, operators of public Facebook pages would still be considered to be secondary publishers of defamatory comments. In addition, his Honour said that because of how a public Facebook page operates, there is limited scope, if any, for the defendants to rely upon innocent dissemination and escape liability by "turning a blind eye". In his Honour's view, the defendants, in posting their articles and allowing comments were "promoting, ratifying and consenting to" the defamatory comments, even where they could not have advance knowledge of what those comments would say. In so doing, his Honour tacitly adopted the test in Byrne v Deane [1937] 1 KB 818, which has been previously applied in Australia by Justice Hunt in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81 – 127 (but has not been extended to online publications, see Oriental Press Group Limited v Fevaworks Solutions Ltd (2013) HKCFAR 366, as discussed in Google Inc v Duffy at [143]-[146]).
His Honour also noted that those who post defamatory comments on the defendants' Facebook pages are not absolved of liability. Those who write comments can separately be found liable as primary publishers, and as a secondary publisher where the comment is also automatically published to their personal page by operation of the Facebook algorithm.
In an attempt to address concerns that his Honour's judgment may cause the defendants to censor all comments on their articles (and thereby unduly impact on "free speech"), his Honour noted that although the defendants and similar organisations might decide to censor comments, the functionality of Facebook would still allow users to share and comment on articles using their private pages.
Factual determinations relating to public Facebook pages
His Honour's finding that the defendants were primary publishers hinged on an analysis of the defendants' conduct and a characterisation of the defendants' Facebook pages as "public".
The following characteristics of the public Facebook pages were highly relevant to the decision.
Status and Purpose of the Page
First, his Honour found that the "public" status and purpose of the Facebook page is relevant to the determination of whether a publisher is either a primary or secondary publisher.
His Honour held that the defendants had intentionally set up the pages as a forum for public debate. The parties knew that comments would be made on the articles and calibrated the settings of those pages to allow public comments. In Justice Rothman's view, given that the defendants had chosen to operate public Facebook pages, they had to assume the risk that comments made on those pages would render them liable. In other words, the defendants were not mere conduits and had control over the forum in which the comments were published.
It was also relevant to his Honour's analysis of the defendants' conduct that the operation of the public Facebook pages was to the benefit of the commercial interests of the defendants: The evidence showed that by operation of Facebook algorithms, the more commenters that defendants could draw to the page, the greater their readership of its articles. The defendants therefore stood to gain from inviting comments on controversial topics.
Capability to Monitor Comments
Secondly, his Honour found that the capability of the defendants to monitor comments on their Facebook page was also relevant to the question of whether they were primary publishers.
Justice Rothman placed emphasis on the fact that administrators of public Facebook pages can effectively delay the posting of comments on their posts by creating and applying a list of prohibited words that contains many commonly used words (e.g. prepositions and pronouns) that would render any comment that included said words "hidden" until unhidden by the administrator of the page. The administrators of the page can then review all the "hidden" comments for defamatory material, and unhide any innocuous comments while continuing to hide or delete defamatory comments. In his Honour's view, if the list of prohibited words selected by the administrators is broad enough, it would capture most, if not all, comments.
Justice Rothman contrasted the editorial controls available to the administrators of public Facebook pages with the less extensive controls available on websites and private individuals' Facebook pages. Operators of websites can only block or hide comments on a website after they have been made. Operators of private Facebook pages can limit who can post to their timeline, but cannot prevent their friends from commenting on their posts.
It follows that it was integral to his Honour's categorisation of the defendants as primary publishers that they had the capability to review comments before they were published by first implementing a filter to hide all comments and thereby delay their publication until such time that the defendants were satisfied to "unhide" or "release" those comments to its page.
His Honour further noted that, in relation to any comments which the operators of the public Facebook pages had hidden on their pages, but which were still available to be viewed by the friends of the individual who posted the comment (as is the case for hidden comments), the operators of the pages would likely be considered to be secondary publishers.
Control and Assessment of Posts
It was a relevant consideration that the defendants had knowledge of the posts that were being uploaded, were aware that comments were likely to be made, and that, because of the nature of the posts, comments would likely contain defamatory material. With this knowledge, the defendants could have chosen not to upload the posts, or have taken more active steps to monitor the comments and prevent defamatory comments being made public.
His Honour held that unlike, for example, Google search results, the posts on a public Facebook page are not made automatically. The operators of public Facebook pages are aware of the nature of the content that they propose to upload, and the comments they are likely to attract.
The operators of public Facebook pages are similarly distinguishable from forum or noticeboard website hosts. Hosts of forum or noticeboard websites have no control over what initial posts will be made to their websites, and, as discussed above, can only act reactively to posts made by others. In contrast, the defendants are in complete control of what posts are made and, as discussed above, can delay and monitor comments being made in relation to these posts.
Justice Rothman noted that the defendants knew at the time that posts were uploaded that defamatory material would likely be published on their pages as a consequences of allowing comments. In the Court's view, the defendant was therefore on notice of the potential for defamatory commentary and cannot try and evade responsibility under the law of defamation.
Looking forward
Following the decision in Voller, owners and administrators of public Facebook pages (for example companies, clubs, common interest groups and individuals) should exercise caution in how they administrate their pages. When uploading posts, operators of Facebook pages should take care to consider the potential for defamatory comments that will flow from such a post. Operators should also implement all options available to moderate comments, including by hiding or deleting them.
While the defendants in this proceeding were media organisations, any person or entity operating a public Facebook page will be expecting to receive some benefit from their operation of the page (whether it be commercial benefit, advertising revenue or increasing awareness of the person, business or cause), will gain from inviting comments on their posts, and will have the relevant level of control over the posts and comments on their page.
It therefore seems likely that his Honour's findings will extend to public pages operated by non-media organisations. All organisations operating public Facebook pages should therefore be aware of the risks and consider taking the steps set out in the attached flowchart guide.
If publishers wish to attract people to their Facebook pages by encouraging comments on controversial or topical posts, they must weigh the benefits of publishing that post against the risks of being found liable for the publication of potentially defamatory comments.
It is worth noting that although Justice Rothman stated that a distinguishing feature of public pages is the fact that the administrator of the page can "forbid all comments by others" (see [205] and similar comments at [138]), Facebook does not currently have available an option to disable all comments on a public page or an individual post on a public page. The only option made available by Facebook, which was suggested by his Honour, is to filter comments for words so all posts containing these words are automatically hidden before being published to the public, and then have administrators review and unhide the ones that are not defamatory or otherwise objectionable.
Questions remain about how administrators of public Facebook pages will be expected to put his Honour's decision into practice, including in order to deal with comments containing only images (including images containing text) or which use alternative spelling or lettering (e.g. V0ll3r, @nd), both of which will not be caught by word filters. The defendants raised their concerns about the fact that currently Facebook has no tools to pre-emptively deal with such comments (see [42], [73] of the judgment). Similarly, comments containing emojis, which are an increasingly prevalent feature of online communications, may not ordinarily be captured by a text-based filter.
The Court left open the possibility that a publisher in the position of the defendants may not be liable as a "primary publisher" if it is practically impossible to monitor and manually unhide comments without the application of "extraordinary resources". His Honour noted that such a situation had not arisen in these proceedings: evidence had been given that each of the defendants either had, or would be able to obtain, sufficient resources to monitor the amount of comments they were receiving. However, an operator who considers it impossible to monitor comments (e.g. because of a significant daily volume of comments) may have scope to argue that it does not have the capacity to exercise editorial control of its page, and therefore is a subordinate distributor entitled to rely upon an innocent dissemination defence (Defamation Act 2005 (NSW) s 32).
His Honour adverted to the fact that principles in this area are still very much developing, and it may be up to higher courts to make determinations on the principles. The defendants have sought leave to appeal the decision. Operators of public Facebook pages should be alert to the possibility that their risks, and methods of mitigating their risks, may continue to change.
Flowchart guide
We have prepared the following flowcharts for operators of public Facebook pages. The issues raised by the Voller decision are complex, and legal advice should be sought to determine the most appropriate social media policy and monitoring strategy for your page. Please contact us if you would like any assistance with preparing a social media policy or providing training to staff on social media monitoring strategies in light of the Court's decision in Voller.
Setting up your Page
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Posting
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Monitoring comments
1 Note: in this article, the term operators is used to mean both owners of Facebook pages and those who administrate the pages (e.g. an owner being the organisation to which the page belongs, and an employee of that organisation being an administrator). Facebook breaks down the administrator role into different roles with different responsibilities (admin, moderator, editor, advertiser and analyser). In this article, the term administrator covers admins, moderators, and editors, all of whom have the power to review and delete comments on public Facebook pages.
For further information, please contact:
Robert Todd, Partner, Ashurst
robert.todd@ashurst.com
