Liability in defamation for third-party Facebook users’ comments

On 8 September 2021, the High Court published its decision in the case of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27. The decision will impact everyone who is active on social media and has already led to a change in the way many prominent individuals and organisations manage their online interactions with the public.

The facts

Dylan Voller, a former detainee from the Northern Territory, commenced litigation against three media outlet giants in the NSW Supreme Court in an attempt to sue them in defamation for comments made about him on their Facebook posts by third-party Facebook users.

The progress of the defamation case was waylaid due to a dispute over whether the media outlets were publishers of the comments for the purpose of establishing defamation.

The decision

By a 5:2 majority, the High Court found that the three media outlets were liable for defamatory comments made on their posts by third-party Facebook users. Although it was not alleged that the media outlets themselves had posted any defamatory matters, the High Court decided the media outlets were “publishers” of the comments which were made on their posts, as they “encouraged and facilitated” the making of the comments.

The implications

The decision in this case not only applies to media outlets and Facebook pages, but will also impact any person with a website or social media page. The owner of a social media page may be found liable in defamation for comments made by third parties, even if they were not aware of the existence of the comment or its content.

The response

In a snap response to the decision, a number of people and organisations with a large social media presence and following have turned off the commenting function on many of their Facebook posts, including the Tasmanian Premier, Peter Gutwein.

What you need to do

If you or your company is an active online poster and sharer, especially of material that may be considered contentious, you may wish to consider monitoring comment sections or even turning off the commenting function until the broader implications of this decision become clear.

More information

If you have any queries or would like further information about this article, please contact:

Justin Hill
M: 0418 578 701

Sarah Standen
T: (03) 6235 5147

Published: 20 October 2021

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