This article was written by Cate Nagy, James Russell, Luke Hawthorne, Britt Mashado, Julius Moller and Oceane Pearse.
On 8 September 2021, the High Court handed down its highly anticipated judgment in the case of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27. You can view the decision here.
A majority of the High Court (5:2) dismissed the appeal made by the three media companies and upheld the lower courts' findings that such companies are in fact "publishers" of comments made by others on their public Facebook pages, within the meaning of the Defamation Act 2005 (NSW) (the Act). In particular, it was held that the acts of the media companies in facilitating, encouraging and thereby assisting the posting of comments by Facebook users rendered the media companies "publishers" of those comments.
The decision confirms a strict approach to determining what amounts to "publication" when establishing a defamation claim. While the High Court did not have to deal with whether the media companies were able to rely on the defence of innocent dissemination to avoid liability, significantly, the High Court did unanimously hold that the innocent dissemination defence does not impact the question of publication. While innocent dissemination may ultimately provide freedom from liability for "subordinate distributors" (those who have no editorial control over a publication) it is now clear that being characterised as a subordinate distributor with no prior knowledge of the material does not mean the distributor did not 'publish' the material.
This decision has wide ranging implications for anyone – including, corporates groups and individuals – who have social media accounts where others can make comments without the account owner's knowledge, support or agreement.
In 2016, the ABC aired an investigation into Australia's juvenile detention system on its Four Corners program, which included the story of Northern Territory youth detainee Dylan Voller. Mr Voller became the subject of significant media attention as his story was shared by major news outlets around the country, including through digital articles posted to the public Facebook pages of these media companies. Mr Voller subsequently became the subject of internet "trolling" by comments being left by third parties on these public posts.
In 2019, Voller launched defamation actions against three media giants – Fairfax Media, Nationwide News and Australian News Channel – in the NSW Supreme Court on the basis that the media companies should be held liable for these third-party comments on their Facebook pages.
Before the substantive case could be heard, the primary judge, Rothman J, ordered that a preliminary issue be decided separately – namely, the question of whether the relevant media companies could be considered "publishers" of the relevant comments under the Act. Both the Supreme Court of NSW and the NSW Court of Appeal found that, despite not being the original authors of the comments, the media companies were nonetheless responsible for having "published" the relevant material. The matter was then appealed to the High Court of Australia, which heard the appeal on 18 May 2021.
What amounts to "publication"?
To succeed in a claim of defamation, a plaintiff must establish that defamatory material is "published" to a third party. However, the bounds of what exactly the courts will consider to constitute "publication" has become murky territory in the digital age.
The primary argument put forward by the media companies was that, to make out a claim for defamation, it must be shown that the defamatory material was published intentionally. They argued that if they did not intend to communicate the relevant comments to the public, they should not be held liable as publishers of the material.
The majority of the High Court rejected this argument and instead confirmed that the publication rule is intended to capture a broad range of activity, regardless of the publisher's knowledge or intention. The Court held that "any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher".
In having created and administered a public Facebook page which enabled comments by third-party users, the media companies were found to have facilitated, encouraged and assisted the publication of those comments and were therefore publishers of not just their own posted content, but any comments posted in response.
In separate dissenting judgments, Edelman and Steward JJ adopted a more flexible approach to the question of who is a publisher.
Both dissenting judgments concluded that the media companies erred in their "all or nothing" approach, when they argued that they were either publishers of all third-party comments on their respective Facebook pages, or were not publishers of any of them. Instead, in determining the requisite intention, their Honours referred to the degree of connection between the third-party comments and the original posts uploaded by the media companies
Edelman J held that the connection between a third-party comment and the subject matter of the article posted by the media company needs to be "more than remote or tenuous" in order for the media organisation to be regarded as having published the third party comment. Steward J held that third-party comments must have been "procured, provoked or conduced" by the subject matter or the article posted.
Edelman J provided an example where defamatory third-party comments might be posted in response to a story about weather patterns. A comment which disparaged the competence of the author to predict weather patterns, in his view would be sufficiently connected with the story to establish that the media company intended to, and did, publish the third-party comment. However, a random third-party comment, entirely unconnected with the weather story, for example claiming that a particular person is a thief, would not be "published" by the media company.
Their Honours concluded that the mere act of posting a story on Facebook, combined with the fixed presence of the "comment" button, is not in itself an invitation for third parties to write words about anything and everything. A degree of connection to the story is required in order for the account holder of the page to be regarded as a publisher, rather than the "all or nothing" approach adopted by the majority.
Innocent dissemination defence
As the appeal to the High Court related solely to the separate question of whether the media companies could be considered "publishers", the question of whether the innocent dissemination defence is available to the media companies was not a question for the High Court to determine. The proceeding will now be remitted to the primary judge for determination of the issues remaining in the case, including the defence of innocent dissemination.
However, the media companies did seek to rely on the authorities related to the innocent dissemination defence to establish that publication required an element of intention. The High Court took it upon themselves to helpfully clarify an issue regarding the cross-over between the element of publication and the defence of innocent dissemination that had – until now – been unresolved in Australia.
Despite some academic support and strong hints of judicial support, no Australian case had (before Voller) conclusively recognised that the foundations of "innocent dissemination" have shifted from merely negating the element of publication to becoming a true defence to a claim of defamation.
The High Court was unanimous in its treatment of the innocent dissemination defence, finding that it acted as a "true defence" which could justify or excuse publication of defamatory matter by subordinate distributors (if the elements of the defence are satisfied), as opposed to it being a denial of the element of publication. The defence is only available to "publishers" of information who may otherwise be liable for defamation.
What does this all mean?
Given the High Court's decision related solely to the issue of publication, whether or not the media outlets will eventually be held liable for defamation in the Voller Case (including whether they can rely on the innocent dissemination defence) remains undecided – for now.
However, in confirming the findings of the lower courts in this matter, this decision clarifies that companies will not be able to rely on a lack of knowledge of the material posted on their social media pages (or a lack of intention to publish them) to deny that they are responsible for "publishing" the third party comments. In an era when anyone can have a social media account and anyone can – and does - comment on other people's posts, this decision has wide ranging implications for everyone from individuals and small community groups to large corporates. In order to avoid any argument about whether or not you have inadvertently "published" another's defamatory comment, it might be time for all social media account holders to review the functionalities offered by the various platforms, including the ability to restrict comments and consider whether and when to "turn comments off".