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Social media is often referred to as the ‘wild west of media’ and the Voller case represents this sentiment well!

Nobody can doubt the power of social media in our community. It is almost expected nowadays that businesses and entities have a dynamic and interesting social media presence. Most of us don’t think about the implications of creating and running these pages though.

I suspect this attitude will change now the High Court has handed down their decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021).

Dylan Voller, received considerable media attention after footage was released of his treatment whilst in custody.  As often happens, several news outlets posted stories about his treatment on Facebook, whilst directing readers to their websites via a hyperlink. Facebook users then posted comments after the story. Voller is alleging that some of these comments are defamatory.

In light of this, Voller brought an action against the publishers of The Sydney Morning Herald, The Australian, The Centralian Advocate, Sky News Australia and the Bolt Report.

First of all…a bit of context relating to defamation. You need to establish a number of elements to prove that an ‘imputation’ has been defamatory. The primary test relates to whether an ‘ordinary reasonable person’ would think less of, shun or avoid the plaintiff (the person who has allegedly been defamed).  One of the key issues which has been brought to the fore in recent defamation cases relates to ‘who’ is considered to be a publisher of information. As you can imagine in the ‘wild west’ of social media, determining this can be tricky!!

Late last week, the High Court in a 5:2 decision dismissed the appeal by Australia media outlets, including The Australian and Sydney Morning Herald.

The arguments the appellants (media outlets) brought were not accepted by the High Court.  The appellants tried to argue they were not publishers as, in order to fit this definition, an ‘outlet must know of the relevant defamatory matter and intend to convey it.’ (at 26) They reasoned they were like a supplier of paper to a newspaper company. (at 13) This contention was not accepted by the majority of the High Court. Essentially it was held- the media outlets ‘encouraged and facilitated publication of comments from third parties.’ (at 105) This in turn meant the media outlets were viewed as ‘publishers’ of the third-party comments.  (at 105)

Gageler and Gordon JJ (in the majority) spoke about how businesses use Facebook to make money. They noted ‘the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.’ (at 100)

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The dissenting judgments, were perhaps the highlight for me!! Edelman J held the media outlets were not publishers of the ‘uninvited words written on their Facebook page.’ His honour drew an analogy between graffiti on a community noticeboard and the relevant Facebook comments (at 139). That is- neither the graffiti or the comments ‘satisfies the required intention for publication.’ (at 139)

Also, in dissent, Steward J notes (At 180) that finding the media outlets as publishers in this case may open the floodgates of litigation. ‘Were it not so, all Facebook page owners, whether public or private, would be publishers of third‑party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredicted.’ (At 180) Steward J contends- for there to be liability of third-party comments, ‘there must be something about the content, nature or circumstances of a Facebook post that justifies a conclusion that it has procured, provoked or conduced a defamatory third‑party comment or comments, such as to make the owner the publisher of such comments.’ (at 180)

The next step in this litigation process will be a determination on whether or not the comments are defamatory. There is no doubt that this determination a major leap forward for Voller and his legal team. The decision also has significant implications for businesses, groups and entities who have a public Facebook page- especially if they are using the presence for commercial gain. From a personal point of view, I can see ‘why’ the majority decided as they did in this case. Often people/entities are required to take responsibility for the actions of others- vicarious liability and occupiers’ liability are good examples of this. I can also see the merit in the dissenting arguments- especially in light of my experience in managing both personal and businesses’ social media pages. Without having a significant impact on engagement- it is difficult for me to see how businesses can safeguard themselves against liability whilst also encouraging others to engage with their products/services.

Exciting times ahead!!