The eagerly awaited decision in the case of Voller was handed down by the High Court of Australia on 8 September 2021 following a hearing on 18 May 2021. The decision has far-reaching consequences and has prompted a significant review by media organisations of its activities and operations and has also prompted calls for legislative change.

The decision in Voller has its roots in cases brought by Dylan Voller, which attracted much publicity following his incarceration in a juvenile justice detention centre in the Northern Territory. Most media organisations reported on the story about Mr. Voller, including a Fairfax company, Nationwide News, and Australian News Channel. Those three organisations were the appellants in the appeal to the High Court of Australia. All three of those media organisations maintained a public Facebook page on which they posted content relating to news stories and they provided hyperlinks to those stories on their websites. Significantly so far as the legal issue was concerned, they also invited comments on the posted content from members of the public who were Facebook users. Comments which were made by members of the public appeared on the respective Facebook page and were available to be seen by other Facebook users.

The legal proceedings by Mr. Voller were commenced in the Supreme Court of New South Wales. Mr. Voller took the innovative approach of not suing the media organisations based upon their own stories or articles as published by them but based solely upon the comments that had been made, by members of the public, on their respective Facebook pages. In the normal course, an aggrieved plaintiff would sue a media organisation for the stories or articles published by it but, on this occasion, the legal action was limited to some comments posted by Facebook users. The short question that the primary Judge, and upon appeal, and subsequently upon further appeal to the High Court of Australia, had to decide was whether or not the media organisations were liable as a publisher of the defamatory material. Whilst the question is a short question, the answer is inherently more detailed and complex.

Whilst the media organisations raised a number of arguments with the Courts, their principal arguments can be defined as follows:

1. They did not make the defamatory comments available to the public.

2. They did not participate in the publications.

3. They were not in any relevant sense instrumental in the publication of the defamatory comments.

4. They merely administered a public Facebook page on which third parties published material.

In response to the principal arguments raised by the media organisations, Mr. Voller argued that each of them had facilitated the making of comments by third parties which then became available to others, such that they were liable as publishers.

The relevant legal history as to who is a publisher dates back to the late 19^th century in Britain. As long ago as 1885 (if not a century earlier), the Courts in Britain recognised that a person handing out a newspaper could be liable as a publisher of defamation if the newspaper included a libel. Consistently, if a person loaned or sold copies of a book, prima facie the person would also be liable as a publisher. It can be summarised that a person who has intentionally lent his or her assistance to the existence of the publication for the purpose of it being published is evidence to show a publication by that person. Significantly, a publisher’s liability does not depend upon that person’s knowledge of the defamatory matter which is being communicated or the intention to communicate it.

The legal principles established in Britain were adopted unhesitatingly by Courts in Australia and the seminal judgment of an Australian Court is the 1928 decision of the High Court of Australia in Webb v Bloch (1928) 41 CLR 331. To this day, the decision remains a principal authority on the issue of who is a publisher.

At first instance, the primary Judge of the Supreme Court of New South Wales found that the media organisations were publishers. The Court of Appeal unanimously upheld that decision and the High Court of Australia, by the majority, also upheld it.

The principal grounds upon which the High Court of Australia found that the media organisations were publishers were as follows:

1. Each media organisation intentionally took a platform provided by another entity, being Facebook, and created and administered a public Facebook page.

2. The media organisations then posted content on the page.

3. The creation of the public Facebook page and the posting of content on the page, encouraged and facilitated publication of comments from the third parties.

In the circumstances, the media organisations were held to be publishers of the third-party comments.

The High Court of Australia also adopted the finding of the primary Judge that the media organisations chose to operate public Facebook pages in order to engage commercially with a significant segment of the population (over 15 million Australians are believed to be Facebook users).

In addition or as an alternative to denying being publishers, the media organisations have also sought to rely upon a defence of innocent dissemination, as provided for in section 32 of the Defamation Act 2005. That defence and any other grounds of defence that the media organisations may seek to raise are yet to be determined. At this time, the question that has required a determination is whether or not the media organisations are properly defined as being a publisher. That issue has now been conclusively determined, such that the defamation cases can and will need to proceed.

Conclusion

The finding of the High Court of Australia, which effectively upholds earlier decisions, will undoubtedly have far-reaching consequences not only for major media organisations but also for any organisation that permits public comment on the organisation’s Facebook page, or similar. The decision of the High Court of Australia will no doubt act as a catalyst for an increasing number of individuals to sue the registrant or administrator of Facebook pages and the like not in reliance upon a carefully considered and carefully crafted story or article but based upon comments made by members of the public generally and who access the Facebook page. As noted earlier, the consequences of the judgement are prompting consideration of legislative change.

Have you been the subject of negative public publications and want to learn more about your rights? Contact our defamation team today at [email protected] to discuss your matter further.

The blog published by Rostron Carlyle Rojas is intended as general information only and has no legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.

The recent majority decision by High Court of Australia case Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 confirmed the Supreme Court of New South Wales decision on appeal that, when publishing content relating to news stories about Mr Voller, on a respective public Facebook pages, three media organisations were liable for the publication of allegedly defamatory comments that were posted by third-party Facebook users in response to their Facebook publications.

The Voller decision found when publishing social media content, the person who published that social media content will also be the publisher of any comments related to it by third-party social media users. A majority of the Court held that whether the person is liable as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, “participated” in the communication of the defamatory content to a third person. The decision confirmed by creating a public social media page and publishing content to it, a person facilitated and encouraged the publication of comments from third-party social media users.

The Applicants had raised the Court of Appeal of England decision Tamiz v Google Inc asserting that a person must have knowledge of the relevant defamatory content and intend to publish it. The High Court dismissed the Applicant’s argument in this regard. Therefore, it is not required that the publisher of the content has knowledge of such a defamatory comment by a third-party but it may be relevant.

Further, the defence of Innocent Dissemination was considered in Voller and the High Court clarified that the defence of Innocent Dissemination would only be available once defamation is established. Therefore, in order for Innocent Dissemination to apply, the element of publication of the defamatory content must first be met.

What does this mean for a person publishing content on social media?

Whilst the Voller decision related to media organisations it effectively extends to all people and organisations who publish content on their various internet-based platforms where the platform allows third-parties to comment.

Therefore, it is imperative that anyone or any organisation with a web presence that publishes content, actively monitor and moderate the comments of third-parties to limit their liability in defamation. Most social media platforms including Facebook provide features to prevent social media users from commenting on the published content.

Call our Brisbane Lawyers on (07) 3009 8444 or our Sydney Lawyers on (02) 9307 8900.

The blog published by Rostron Carlyle Rojas is intended as general information only and is no legal advice on any subject matter. By viewing the blog posts, the read understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.

From 1 July 2021, the Defamation Act 2005 (Qld) (Act) has been amended to incorporate a number of important changes to the process of pursuing defamation claims including by:

1. introducing a serious harm threshold;
2. making it mandatory to send concern notices;
3. clarifying damages for non-economic losses; and
4. providing additional defences to defamation.

In addition to the amendments made to the Act, amendments have also been made to the Limitation of Actions Act 1974 (Qld) making it clear that the 1 year limitation period for bringing defamatory proceedings commences on the date the defamatory material are first published and that for subsequent publications, unless the manner of the publication is substantially different to the first publication, the 1 year limitation period commences from the date of the first publication.

Serious harm threshold

Previously in actions for defamation, it was not necessary to prove loss. Once defamation was established, then loss was assumed. Under s 10A of the Act a plaintiff will now have the onus of proving that the publication of the defamatory matter has caused or is likely to cause serious harm to their reputation. 

For those corporations who are eligible to bring defamation actions (generally not-for-profit companies and companies with fewer than 10 employees), they will need to show that the publication has caused, or is likely to cause, serious financial loss.

There is currently no definition in the Act as to what constitutes serious harm nor has there been a case considering the new serious harm threshold under the Act or the similar provisions that have been implemented in New South Wales, Victoria and South Australia.

It should also be noted that the determination of the serious harm issue may be determined either as a pre-trial issue or during the trial on the judicial officer’s own motion or on the application of a party.

Mandatory use of concerns notices

Section 12A of the Act makes the use of concerns notices compulsory. On receipt of a concerns notice the recipient will have 28 days in which to consider their position and whether to make an offer of amends before the aggrieved party is able to commence proceedings. The 28 day period may be extended where a recipient makes a request for further particulars. The concerns notice must be in writing, specify the location where the matter in question can be accessed (such as the webpage where the recipient’s statements have been published), state the defamatory imputations and the harm that the aggrieved person considers to be serious harm to the person’s reputation (for corporations they need to note the financial loss incurred). Where practical a copy of the defamatory comments should be included with the concerns notice.

If a recipient chooses to make an offer to make amends then that offer must be in writing, be open for acceptance for a minimum of 28 days, clearly specify any limitations of the offer in respect of the imputations made, must include an offer to publish a reasonable correction or clarification about the matter in question, must include an offer to take reasonable steps to advise third parties in receipt of the information of the defamatory natures of the information and include an offer to pay the expenses of the aggrieved person.

Damages for non-economic losses

Under the Act damages for non-economic loss are currently capped at $421,000 for non-economic loss noting that the Act now specifies that this is a maximum amount which must only be awarded in the most serious cases. Additionally, s 35 of the Act now expressly requires that aggravated damages (if applicable) must be provided for separately from awards for damages for non-economic loss.

Amendments to the defence of contextual truth

The defence of contextual truth has been amended to specifically allow defendants to rely on imputations complained of by a plaintiff being substantially true and overcome the difficulty presented by the previous wording which required defendants to rely only on imputations not raised by a plaintiff.

Defence of public interest

A new defence of public interest has been inserted to protect journalists and media organisations in circumstances where they are fairly covering matters of public interest. In determining whether the defence is made out a Court will look at a number of factors including the seriousness of the defamatory imputations, the extent to which the published material distinguishes between facts, suspicions and allegations, the importance of freedom of expression in the discussion of issues of public interest, if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential, the sources (including their integrity) for the information published, what steps were taken to verify the information or whether the published material contains the aggrieved persons side of the story and if not whether reasonable attempts were made to obtain a response from them.

Defence of scientific or academic peer-review

A new defence has also been inserted to cover statements published in scientific or academic peer-reviewed journals provided it can be established that:

1. the matter was published in a scientific or academic journal (electronic or hard copy);
2. the matter relates to a scientific or academic issue
3. an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by:
   1. the editor of the journal if the editor has expertise in the scientific or academic issue concerned; or
   2. 1 or more persons with expertise in the scientific or academic issue concerned.

This defence will be defeated however if a plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.

Effect of these changes

The changes noted above has significant consequences for both those parties who believe they are the subject of defamatory material and a person being accused of making defamatory statements.

If you become aware of defamatory statements being made against you, you will need to consider the requirement to prove serious harm and ensure that you act quickly to avoid the 1 year limitation period. It is also important that the process set out in the Act is followed both in order to attempt to resolve the matter out of Court and be able to bring proceedings in the event such resolution is not achieved.

For persons being accused of making defamatory statements there are now additional defences that will need to be considered as well as specific steps that will need to be followed on receipt of a concerns notice and in making an offer to amends.

If you have any questions regarding the amendment of defamation laws or specific advice regarding your matter, please contact Rostron Carlyle Rojas Lawyers:

Defamation law is concerned with the damage caused by a publication that puts a person’s reputation or character to question or disrepute in the eyes of the public. How those words which become the subject of examination in defamation matters are interpreted may be different depending on the context of the publication and with who is reading it. For this reason, the court needs to examine each of those words and phrases for their imputation – i.e. what they stand to mean. This article dives into what an imputation is and how the court deals with the determination of an imputation when considering whether an aggrieved person has been defamed.

In any claim for defamation, there are two fundamental elements to be determined by the Court in respect of imputations: 

1. Whether or not the imputations pleaded by the aggrieved person are conveyed by the publication; and 
2. If any of those imputations do arise, whether or not the imputations are defamatory of the plaintiff. 

Limb 1: Whether or not the imputations are conveyed

Whether or not the imputations are conveyed is an objective question of law, and is tested by reference to the ordinary reasonable reader test. To satisfy that test, it must be established that an ordinary reasonable reader would have comprehended the publication in the way in which the imputations have been pleaded. There are two primary elements that must be taken into account in determining whether the test is satisfied:

1. what are the attributes of an ordinary reasonable reader; and 
2. how would an ordinary reasonable reader comprehend the publication. 

The ordinary reasonable reader is, at law, an individual that is of ordinary intelligence, experience and education. They are individuals not “avid for scandal”, or “suspicious of mind”. In short, the ordinary reasonable reader will not search for adverse meanings, but will comprehend the publication with a level head. 

In determining whether that ordinary reasonable reader would comprehend the publication to convey the imputations, there are a number of considerations. Importantly, the ordinary reasonable reader would consider the express meanings that arise from the publication, but they may also consider the meanings that arise by way of inference, implication, or innuendo. A true innuendo will arise in circumstances where, for example, readers of the publication have specific or special knowledge relating to the aggrieved person which allows an innuendo to be formed by reference to the words published. Finally, the conveyance of imputations may be determined by considering the publication as a whole, but may also have reference to particular parts of it. 

It is not necessary that each of the imputations pleaded are conveyed, or are defamatory. It is sufficient for some of the imputations to be found to be conveyed. In respect of those imputations which are found to be conveyed, it must then be determined whether those particular imputations are defamatory. However, only the imputations that have been pleaded may be found, and there is no discretion to find imputations which have not been pleaded by the aggrieved person. For this reason, it is deftly important that a defamation is properly pleaded from the outset as a failure to plead the imputations properly may be a costly and, in some cases, futile exercise.

Limb 2: Whether or not the imputations are defamatory

If an imputation is found to be conveyed, it is then a matter of determining whether the imputations are defamatory of the aggrieved persons. In determining this question, it is a matter of whether the reputation of the aggrieved person will be diminished in the eyes of the general public, or the reader of the publication, as a result of the imputations that arise. 

An imputation may also be defamatory where the publication of the imputations results in the aggrieved person being ridiculed, avoided or shunned by readers of the publication. However, it is not necessary for the aggrieved person to show that the publication of imputations has already caused damage to their reputation, but is instead just that is has or is likely to cause such harm. 

Generally

Imputations, and the legal process of pleading and determining them, are common across all states. They are heavily discretionary, as each individual will interpret and comprehend a publication in different ways. Therefore, it is extremely important that imputations are pleaded comprehensively, and with great care and skill. 

Have you been the subject of negative public publications and want to learn more about your rights? Contact our defamation team today at [email protected] to discuss you matter further.

The blog published by Rostron Carlyle Rojas is intended as general information only and is no legal advice on any subject matter. By viewing the blog posts, the read understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.