Australian defamation decision raises risk for public Facebook pages
Australian defamation decision raises risk for public Facebook pages
Wednesday 31 July, 2019
The Supreme Court of New South Wales has released a judgment holding that companies that operated public Facebook pages are liable for defamation if someone published defamatory comments on their page.
Background
Each of the defendants had a public Facebook page. The purpose of the public Facebook pages was to post comments or provide links to articles. Members of the public with a Facebook account were invited to leave comments about the defendants’ posts. The defendants wanted to stimulate people to comment on their posts as much as possible, as Facebook’s algorithms meant that their page would be promoted more. The defendants wanted to induce people to visit their main website and subscribe to their publication. The plaintiff thought that some of the comments made on the public Facebook pages were defamatory of him.
The defendants had three options for managing the comments that were posted: allowing all comments, but blocking certain comments using a list of offensive words; hiding all comments, and then unhiding each comment after a moderator has reviewed it; or not allowing any comments. The defendants asserted that monitoring would require a disproportionate amount of time and effort, and disabling the comment feature would defeat the purpose of the page, which was to engage the public’s interest. The Court accepted that it was not possible to use a filter and catch all, or even any, defamatory comments in advance. The defendants stated that monitoring of public comments sometimes occurred when posting controversial articles but were unsure whether any assessment for controversiality had actually been done in this particular case.
Allowing comments is publication
The key issue for the Court to decide was whether, by allowing the comments on their public Facebook page, the defendants were held to have ‘published’ the defamatory comments. A New Zealand Court of Appeal case, Murray v Wishart [2014] NZCA 461 held that the owner of a private Facebook page can only be liable if they had actual knowledge that the comments were defamatory and failed to take them down within a reasonable time, giving rise to an inference that the owner took responsibility for the comments. This finding recognises the fact that a site creator does not have the opportunity to vet comments prior to publication and can only remove them retrospectively.
The Court in this case didn’t follow Murray v Wishart. It relied on the fact that owners of public Facebook pages can delay publication of the comments and monitor for defamation before releasing them to general readership. The defendants provided a forum for the publication of comments and encouraged it for their own commercial interests. They were aware that comments were likely to include defamatory material. The Court concluded that the defendants were primary publishers of the defamatory comments.
Implications for New Zealand holders of public Facebook pages
New Zealand courts have not yet considered the liability for defamation of the owners of public Facebook pages, where the owner is able to monitor comments before they are released to the general public. In Murray v Wishart, the Court of Appeal recognised that decisions relating to the defamation liability of internet hosts were very fact-dependant. Thus far, it has only considered situations where the host of the page has little control over comments, and it is entirely possible that it might reach a different conclusion if there was evidence showing that the host of the page did have control over whether comments were displayed to the public.
However, New Zealand hosts of public Facebook pages have the protection of s 24 of the Harmful Digital Communications Act which protects the host of online content from liability in respect of defamatory content provided that it follows the process set out in s 24.
Voller decision upheld on appeal
The media companies in the Voller case appealed to the New South Wales Court of Appeal. The Court of Appeal upheld the Supreme Court’s decision, finding that the media companies did have sufficient control over the comments to be considered publishers. They facilitated the posting of comments on articles published on their online platform and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory. The Court found that a person (or company) who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees.
Where to from here?
The 2019 Paris summit on social media indicates a move in some quarters to hold social media to higher standards of accountability, so perhaps this stricter approach to defamation liability will catch on. However, Australia’s defamation laws are currently under review, with major changes proposed that would reduce the liability on media companies, as the current law has a chilling effect on legitimate reporting. In a previous article, we discussed the new Public Interest defence for defamation, click here to find out more.
Please contact James MacGillivray or Kate Cornege if you want to learn more about the issues discussed in this article.
