Third party comments on your Facebook page – can you be held liable?

Alarm bells have been rung by a defamation decision that finds a person with a public Facebook page can be exposed to liability as a primary publisher for defamatory content posted on it by third parties.

New South Wales Supreme Court Justice Stephen Rothman delivered judgment on this important discrete point in Voller v Nationwide News Pty Ltd1(click here for the decision).

Facts

Each of the three media defendants2 in the case operate a public Facebook page.  The Media Defendants use their public Facebook pages to make comment and/or provide links to their news content stories at their websites, with the commercial aim of driving online traffic to their websites, which invites members of the public, who have Facebook accounts, to post comments in response to the stories.

In his claim, Mr Dylan Voller3 (Mr Voller) alleges that the Media Defendants published links on each of their Facebook pages to news content stories regarding him, causing online traffic to be pushed to their respective media websites. 

The court heard evidence (one of the stories) relating to Mr Voller ‘was an emotive issue that could and did trigger very strong positions on both sides, including quite unreasonable positions’.4

By his claim, Mr Voller alleges that comments posted about him by third parties on the Media Defendants’ Facebook pages were defamatory (Third-Party Comments). 

The parties agreed that a core issue in the case – namely whether the Media Defendants are liable as publishers (in the defamation law sense of that word) for the postings that are made by members of the public onto their public Facebook page – be tried as a separate issue.5 The decision on that question might determine whether the case then proceeds to a full trial on all issues.

The Media Defendants led evidence about use of their respective Facebook pages.  It was to the effect that:

  • the purpose of the Facebook pages was not to disseminate news but rather to provide a link to an article to engage the public and draw readers to the Media Defendants’ content;6
  • the administrators of the Facebook pages had the ability to review comments and “hide” or delete comments on Facebook;7 and
  • (for two of the Media Defendants at least) there was a significant time cost to reviewing every comment posted on their Facebook pages.8

Decision

On the basis of the evidence before the court about the use and operation of the public Facebook pages and the capacity of the Media Defendants to control content posted there,9 and applying the principles as to ‘publication’ developed in defamation cases, the NSW Supreme Court held that the court was:

…satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates.  As a consequence of that classification, the defence of innocent dissemination would not arise. That latter aspect is not, strictly, necessary to answer the question that has been posed.10 

In arriving at that finding, his Honour Justice Rothman noted that the issue under consideration related to an emerging area.11  In order to properly traverse the legal principles, his Honour considered decisions not only from Australia but also from the United Kingdom, Canada, the United States, New Zealand and Hong Kong. 

On a consideration of the legal principles, and the evidence before the court, his Honour found in the case before him that:

  • the administrators of the Facebook pages had the ability to prevent comments by third parties.12
  • the Media Defendants’ use of Facebook was for commercial purposes and had little to do with freedom of speech or the exchange of ideas.13
  • the Media Defendants provided the forum for, and encouraged, the publication of comments.14
  • the Media Defendants did not “hide” the comments so they could be reviewed before being published.15
  • the Media Defendants had “final right of approval”.16
  • the time cost of monitoring the Third-Party Comments was not an answer.17
  • the Media Defendants had given evidence that they were aware that comments that might be posted in relation to Mr Voller on their Facebook pages more probably than not would include defamatory comments.18

On balance, therefore, the Media Defendants were held to be “publishers” of the Third-Party Comments.

Lavan comment

This decision serves as a warning to any person who operates or administers a Facebook page (including a private page, but in particular a public one) as to your potential exposure to a defamation claim directed at the defamatory content of a post uploaded to your page by a third party.  “Turning a blind eye” to potentially defamatory comments posted on your page by a third party may not be an approach that would find favour from a court.19

Users of Facebook beware.  If you operate, host or administer a Facebook page, whether it be large or small, which encourages and elicits contributions from others whether for commercial, personal or ideological reasons, if certain circumstances exist (particularly if you have a capacity for comments to be hidden until they are vetted), you are potentially exposing yourself to liability for the posting handiwork of others. 

The decision also leaves open the question of liability for defamation for old threads you might have available on your Facebook page.  In general terms, a claimant has 12 months from publication of defamatory matter to bring a claim in Western Australia for defamation.  However, each time an online content is ‘downloaded’ by a person and read by them there is a fresh ‘publication’ and the time limitation period starts afresh in relation to that new ‘publication’.

If you are concerned, Nick Stagg, Partner, and Jasmine Sims, Associate, in Lavan’s Litigation, Dispute Resolution team are able to provide advice that is specific to your situation.

AUTHOR
Nick Stagg
Partner
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Jasmine Sims
Associate
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Corporate Disputes
Litigation and Dispute Resolution


FOOTNOTES

[1] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766.

[2] Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd (Media Defendants).

[3] Mr Voller was the subject of an ABC ‘Four Corners’ program that reported on juveniles in detention in the Northern Territory.

[4] Voller, [84].

[5] Voller, [5].

[6] Voller, [30].

[7] Voller, [19].

[8] Voller, [39].

[9] At [223], Rothman J found that ‘on the evidence before the Court, each defendant had the means effectively to delay the publication of the third-party comments and to monitor whether any were defamatory, before releasing them to the general readership’.

[10] Voller, [228].

[11] Voller, [91].

[12] Voller, [205].

[13] Voller, [207], [209].

[14] Voller, [224].

[15] Voller, [223], [227].

[16] Voller, [221].

[17] Voller, [222].

[18] Voller, [225].

[19] Voller, [231].