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:
- They did not make the defamatory comments available to the public.
- They did not participate in the publications.
- They were not in any relevant sense instrumental in the publication of the defamatory comments.
- 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 19th 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:
- Each media organisation intentionally took a platform provided by another entity, being Facebook, and created and administered a public Facebook page.
- The media organisations then posted content on the page.
- 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.
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