Australian News Channel Pty Ltd v Voller

[2020] NSWCA 102

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

Hearing dates:

17 December 2019

Date of orders:

01 June 2020

Decision date:

01 June 2020

Before:

Basten JA at [1];
Meagher JA and Simpson AJA at [56]

Decision:

(1)   Grant the applicants leave to appeal from the answer given to the separate question in the Common Law Division on 24 June 2019.

 

(2)   Direct that the draft notice of appeal in the white folder be filed within 7 days.

 

(3)   Dismiss the appeal.

 

(4)   Order that the applicants pay the respondent’s costs of the proceedings in this Court.

 (5)   Dismiss the notice of motion of Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd filed 23 August 2019.

Category:

Principal judgment

Parties:

2019/227059:
Fairfax Media Publications Pty Ltd (Applicant)
Dylan Voller (Respondent)

 

2019/227068:
Nationwide News Pty Ltd (Applicant)
Dylan Voller (Respondent)

 

2019/227080:
Australian News Channel Pty Ltd (Applicant)
Dylan Voller (Respondent)

  Seven West Media Ltd; Dailymail.com Australia Pty Ltd; Bauer Media Pty Ltd (Interveners)

Representation:

Counsel:
Mr J Hmelnitsky SC / Mr MJ Lewis / Mr D Hume (Applicants in all matters)
Mr P Gray SC / Mr R Potter / Ms L Goodchild (Respondent in all matters)
Mr B McClintock SC / Mr M Richardson (Interveners)

  Solicitors:
Banki Haddock Fiora (All Applicants)
O’Brien Criminal and Civil Solicitors (Respondent)
Mark O’Brien Legal (Interveners)

File Number(s):

2019/227059; 2019/227068; 2019/227080

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 766

Date of Decision:

24 June 2019

Before:

Rothman J

File Number(s):

2017/219519; 2017/219538; 2017/219556

headnote

[This headnote is not to be read as part of the judgment]

Fairfax Media Publications, Nationwide News Pty Ltd, and Australian News Channel Pty Ltd (“the applicants”) publish newspapers in NSW, or operate television stations, or both. The applicants maintain Facebook pages on which they publish newspaper articles with an accompanying comment, image and headline. In December 2016- February 2017 the applicants posted news items concerning the incarceration of the respondent, Mr Dylan Voller, in a juvenile justice detention centre in the Northern Territory. Third parties posted comments critical of the respondent. The respondent commenced defamation proceedings against the applicants claiming that particular comments posted by third parties conveyed imputations that were defamatory of him, and that the applicants were liable as publishers of the third party comments.

A judge in the Common Law Division directed the determination of a separate question under the Uniform Civil Procedure Rules (UCPR), r 28.2, as to whether for the purposes of defamation law the applicants published the third party comments. The trial judge answered this in the affirmative. The applicants sought leave to appeal this answer.

Although the applicants had not filed defences the judge also ruled that they could not rely on a defence of innocent dissemination under s 32 of the Defamation Act 2005 (NSW).

Seven West Media Ltd, Dailymail.com Australia Pty Ltd, and Bauer Media Pty Ltd, sought leave to appear as amici curiae in the proceedings. They raised an issue as to the limitations on the liability of internet hosts under the Broadcasting Services Act 1992 (Cth).

The Court (Basten JA, Meagher JA, Simpson AJA) dismissed the appeal and held:

by Basten JA, Meagher JA and Simpson AJA:

1. A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees: [42], [111]. In this case, the applicants maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally and were therefore publishers of the comments: [47], [112].

Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Webb v Bloch (1928) 41 CLR 331; Trkulja v Google LLC (2018) 263 CLR 149, applied.

2. The separate question formulated in this case under UCPR r 28.2 was confined to the issue of publication: [56]; [31]. The primary judge was in error in dealing with additional matters that went beyond this question: [6], [61].

by Meagher JA and Simpson AJA:

3. The attempted intervention as amici curiae of the unrelated parties is not permissible where the parties sought to have the Court decide, in proceedings to which they were not parties, an issue involving questions of construction and of fact which was not before the Court and not pleaded or raised as between the parties: [68]. The separate question in this Court was confined to publication only, not to the application of the Broadcasting Services Act 1992 (Cth). The interveners’ application had no merit and leave to intervene must be refused: [69].

by Basten JA:

4. The role of the interveners was properly that of amici: [9]. The interveners raised issues that went to the heart of the liability of media companies operating Facebook pages in a similar way to the defendants, in circumstances where the defendants did not raise, and did not propose to address, that issue: [10]. This included the operation of the Broadcasting Services Act 1999 (Cth). It was appropriate to identify this issue, even thought it could not affect the outcome of the appeal: [11].

Roadshow Films Pty Ltd v iiNet Ltd [No 1] (2011) 248 CLR 37; [2011] HCA 54, applied.

5.   The Broadcasting Services Act 1999 (Cth), Sch 5, cl 91 precludes a State law imposing liability for defamation applying to an internet content host in Australia: [17]. Its application would depend on whether (i) the defendant was an “internet content host” with respect to third party posts containing the material complained of, and (ii) it was “not aware of the nature of the internet content”: [17].

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, Roadshow Films Pty Ltd v iiNet Limited (2012) 248 CLR 42; [2012] HCA 16; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, discussed.

6. The statutory defence of innocent dissemination in s 32 of the Defamation Act 2005 (NSW) distinguishes between primary and subordinate distributors of defamatory matter; it operates as a defence against liability, not a denial of publication: [37].

Lee v Wilson and Mackinnon (1934) 51 CLR 276; [1934] HCA 60; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; [1996] HCA 38; Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366, discussed.

Judgment

1. BASTEN JA: In July 2017, Dylan Voller (plaintiff), commenced proceedings against three media companies, Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd (defendants) claiming damages for defamation, based on the content of third party posts on their Facebook pages. In broad terms, the proceedings raised four questions, namely:

1. Did the defendants publish the posts?

2. Were the posts defamatory?

3. Were there defences with respect to the publications?

4. What damages should be awarded?

2. The defendants took the view that if a negative answer were given to (a), the proceedings would be dismissed. Although no party filed a notice of motion seeking the formulation of a separate question to be determined before other issues, an informal agreement was reached that that course should be adopted. On 13 December 2017 McCallum J made the following order:

“7. The matter is stood over for argument on 20.04.18 to determine, as a separate question pursuant to UCPR 28.2, whether the defendant is liable for publication on 20 April 2018”.

For reasons which do not appear from the materials before this Court, but may have resulted in part from processes of discovery and the preparation of expert reports, the hearing of the separate question did not in fact take place until 6-8 February 2019.

3. In the course of the hearing on 6 February, the judge raised the question of the scope of the separate question. Again by informal arrangement, the question was more precisely identified by the parties as follows:

“Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third party users?”

4. In a judgment delivered on 24 June 2019, Rothman J answered that question “Yes”. [1] He also considered in the course of his reasons whether the defendants were “first or primary distributors”, or “subordinate distributors” for the purposes of the defence of innocent dissemination, under s 32 of the Defamation Act 2005 (NSW). He made findings (though not reflected in any order of the Court) that the defendants were first or primary distributors and that, accordingly, the defence of innocent dissemination was not available to them.

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

5. The defendant in each of the three proceedings has sought leave to appeal from the determination of the separate question. [2] The grounds in each draft notice of appeal also sought to challenge the additional findings, together with a further finding of fact that the defendants could “hide” all comments on a public Facebook page. The grounds of appeal in all three proceedings read as follows:

“1.   The primary judge erred in holding (at [110]) that the appellant was a publisher and, therefore, erred in answering the separate question ‘Yes’.

2.   The primary judge erred (at [191]-[233]) by answering questions other than the separate question.

3.   The primary judge erred in holding (at [228]) that the appellant was a first or primary publisher in relation to the general readership of the Facebook page it operates.

4.   The primary judge erred in holding (at [29] and [213]) that it was possible to hide all comments on a public Facebook page.”

2. For leave requirements, see Supreme Court Act 1970 (NSW), s 101(2)(e) and s 103.

6. The plaintiff (the respondent in this Court) accepted that the judge was in error in purporting to answer questions other than the separate question (ground 2) and was in error in making a finding as to the proper characterisation of the defendants (the applicants in this Court) for the purposes of s 32. Accordingly, the parties were agreed that this Court should make clear that the trial judge will not be bound by the findings made by the primary judge in the paragraphs referred to in grounds 2 and 3. The particular factual finding identified in ground 4 should fall away on the same basis: it was irrelevant to the question for separate determination and, for reasons which may be briefly noted, may have resulted from a misunderstanding of the evidence.

Intervention

7. On 23 August 2019 three other media companies, being Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd, sought leave to intervene in the proceedings, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 6.24. In the alternative, they sought to appear as amici curiae, either in support of the appeal or, alternatively, “on the issue of whether a corporation which maintains a Facebook or similar page which permits third parties to post comments on the said page, is liable as a publisher of those comments in circumstances where it is not on notice of the comments or the content thereof.” The argument sought to be put was articulated in written submissions filed in advance of the hearing.

8. The interveners sought to raise a question not raised by the defendants, namely whether the claim in defamation was subject to the Broadcasting Services Act 1992 (Cth), Sch 5, cl 91. [3] If that were so, the laws of the State relating to defamation, in so far as they were inconsistent with the Commonwealth Act, were invalid to the extent of the inconsistency, pursuant to s 109 of the Commonwealth Constitution. On 17 October 2019 the interveners served a notice under s 78B of the Judiciary Act 1903 (Cth) on the Commonwealth, State and Territory Attorneys. None has sought to appear.

   3. Section 216B, giving effect to Sch 5, was inserted by the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) (“1999 Amendment Act”).

9. At the hearing of the application for leave to appeal on 17 December 2019, the Court granted leave to the interveners to appear on the hearing. Their role was properly that of amici, in accordance with the principles set out in Roadshow Films Pty Ltd v iiNet Ltd [No 1]. [4]

   4. (2011) 248 CLR 37; [2011] HCA 54.

10. If the Commonwealth law were engaged, it could affect the formulation of any available cause of action in defamation and thus affect the answer to the separate question. The answer would indirectly affect the interests of other media companies operating in Australia who used public Facebook pages in a similar way to the defendants and thereby presented internet content to the reputedly 15.6 million Australians with Facebook accounts. [5] The arguments they sought to present went to the heart of their potential liability in defamation arising from third party posts to their Facebook pages. The defendants had not raised, and did not propose to address, the issue.

    5.    The figure in the evidence probably referred to the number of accounts, rather than persons.

11. The issue could not be dismissed as having no reasonable prospects of success, given the brief discussion of the scope of the Commonwealth provision in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim. [6] It might seem anomalous to determine the existence of an element of the tort of defamation without first determining the legal limits of the tort in the circumstances revealed by the plaintiff’s pleading. It is appropriate to identify the issue, but, because it was not raised by the parties, it cannot affect the outcome of this appeal.

    6. (2012) 83 NSWLR 52; [2012] NSWCCA 125 (Bathurst CJ, Basten and Whealy JJA).

Operation of Commonwealth law

12. The operative provision of the Broadcasting Services Act, Sch 5, cl 91, relied on by the amici, is, relevantly, in the following terms:

91   Liability of internet content hosts and internet service providers under State and Territory laws etc

(1)   A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:

(a)   subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or

(b)   requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or

….

13. Of the terminology used in cl 91, namely “internet content” and “internet content host”, the following definitions appear in cl 3:

3   Definitions

In this Schedule, unless the contrary intention appears:

...

internet content means information that:

(a)   is kept on a data storage device; and

(b)   is accessed, or available for access, using an internet carriage service;

but does not include:

(c)   ordinary email; or

(d)   information that is transmitted in the form of a broadcasting service.

internet content host means a person who hosts internet content in Australia, or who proposes to host internet content in Australia.

14. The term “data storage device” is defined in cl 3 to mean “any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.” The term “internet carriage service” is also defined, in terms which cover a “carriage service” between a point in Australia and one or more other points, either in or outside Australia. [7] A “carriage service” means “a service for carrying communications by means of guided and/or unguided electromagnetic energy.” [8] (This language is adopted in the definition of “electronic communication”, a term found in the definition of “matter”, in s 4 of the Defamation Act.)

    7. Telecommunications Act 1997 (Cth), s 16(1).

    8. Telecommunications Act, s 7.

15. Finally, the issue of legislative intention with respect to possible inconsistency is addressed in cl 90, which provides:

90   Concurrent operation of State and Territory laws

It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule.

16. The mandatory language of cl 91 allows for little operation of cl 90 with respect to this part of Sch 5; indeed, cl 91 identifies the scope of its own operation with respect to State and Territory laws. To the extent that a State law prescribes otherwise, the Commonwealth law will be paramount or supreme, both by virtue of covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (UK), and s 109 of the Constitution which, in this respect, double up. [9] Covering cl 5 states that all Commonwealth statutes “shall be binding on the courts, judges, and people of every State …”.

    9.    M Leeming, Resolving Conflicts of Laws (2011, The Federation Press), p 27.

17. It follows that a provision of a State law (whether a statute or the general law) which imposes liability on an internet content host for defamation in the circumstances covered by cl 91 will, to that extent, have no effect. The material questions are whether (i) a party was an “internet content host” with respect to the third party posts containing material complained of, and (ii) in respect of hosting particular internet content, was it “not aware of the nature of the internet content”.

(a)   “hosting” internet content

18. Fairfax Digital dealt with interlocutory orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW) preventing dissemination over the internet of material referring to unlawful conduct by accused persons in a pending criminal proceeding. The Court held:

“[96] To the extent that Pt 2 of the Suppression Orders Act permits the Court to make an order imposing an obligation on an internet content host to remove, or otherwise restrict access to, content, of the nature of which it was not aware, there would be inconsistency with Sch 5 of the Commonwealth Act. Similarly, to the extent that an order could be made requiring it to inquire of, or monitor, the content hosted on its websites, of the nature of which it was not otherwise aware, such a law would be inconsistent with Sch 5 of the Commonwealth Act.”

19. In the course of reaching that conclusion, the Court addressed a submission that the media companies did not “host” internet content to the extent that they produced the content themselves. [10]

    10. Fairfax Digital at [86].

“[86]   There was debate in the course of the appeal as to whether the applicants, or any of them, were properly identified as internet content hosts. (It was not submitted that they were internet service providers.) The point sought to be made was that the material they were required to remove from their web sites was material which they had produced. The submission was that a ‘host’, not being a defined term, should be given its meaning in ordinary parlance, namely one who provides service or accommodation to another. One is not a host to oneself or one's own family. Accordingly, so the submission went, a party controlling a web site was not a ‘content host’ to the extent that it produced the content. Whether the submission accepted that it was a host in respect of a site containing not only its content, but also messages uploaded by, for example, external bloggers, was unclear.

…

[88] Judicial discussion is limited and has not always distinguished between hosts and service providers: see, eg, in a decision pre-dating Schedule 5, Trumpet Software Pty Ltd v OzEmail Pty Ltd [1996] FCA 560; 34 IPR 481 at 484 (Heerey J); and later, .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; 207 ALR 521 at [3] (Finkelstein J). More assistance may be obtained from a decision of the Administrative Appeals Tribunal in Electronic Frontiers Australia Inc v Australian Broadcasting Authority [2002] AATA 449 where Deputy President Forgie stated:

‘11.   Information on the Internet such as a page on the World Wide Web is known as Internet content. Just as a computer on the internet is uniquely identified, so too is each piece of Internet content. It is identified by its URL. The URL identifies the protocol used to access the content, or type of content, the computer on which it is located and the location of the computer. Although uniquely identified, the Internet content is not static and may be changed as the content of the Internet site is updated.

12.   Content must be hosted on the Internet. Some creators of Internet content host their own Internet content. Most pay an Internet content host to host it on their behalf. In turn, the Internet content host agrees to place the content on a data storage device or server and to make the content available on the Internet. Creators of Internet content are largely free to select their Internet content host.’

…

[90]   It is sufficient for present purposes to accept, as explained by Forgie DP in the Administrative Appeals Tribunal, that an internet content host may include any party in control of a web site to which material has been uploaded. Whether it is uploaded by an agent of the party controlling the web site, or even that party itself, the party remains a content host.”

20. Arguably the submission referred to in Fairfax Digital at [86], that because the term “host” was not defined it should be given its meaning in ordinary parlance, should be rejected. Like many terms used in describing the operation of the internet, common usage provides no more than an analogy from the visible world. Such analogies may be not merely inapt, but misleading. It need not be inferred from the fact that one does not “host” members of one’s own family, that hosting on the internet does not describe the use of a website or platform to store the operator’s own content. Rather, an operator which stores data in a form which is then accessible to its customers, or the public at large, “hosts” that data. In the language of the internet, the ultimate source, author or creator of the data is irrelevant.

21. Further, although the legislation uses the terms “internet content host”, “internet service provider” and “internet carriage service”, individual entities may fall within more than one category. Thus, as noted in Roadshow Films Pty Ltd v iiNet Ltd [No 2], [11] a copyright case, iiNet was both a carriage service provider and an internet service provider. The question in that case, not presently relevant, was whether iiNet had breached the copyright held in films by failing to prevent its customers operating a computer program (BitTorrent) to share films, in breach of copyright. Nevertheless, the legislation involving amendments to the Copyright Act 1968 (Cth) by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) is material because its enactment was almost contemporaneous with the 1999 amendments, which inserted Sch 5 into the Broadcasting Services Act. Although it did not deal with “publication” in terms, the 2000 amendments to the Copyright Act were directly concerned with the concept of “communication” of copyright material and the potential liability of parties providing the physical facilities for such communications. [12] In concluding that iiNet did not authorise infringements of copyright which took place via its servers and carriage service, the majority reasons noted that “iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material.” [13] To similar effect, Gummow and Hayne JJ noted the concession by the appellants that “iiNet itself could not take down the infringing material because it was not acting as host”. [14] It appears from such cases (and the earlier Federal Court judgments discussed in Roadshow Films), that the operator of a website or page on a platform which is able to control the content it makes available to internet users is properly described as hosting that content. Such an entity would therefore fall within that part of the definition of “internet content host”.

    11. (2012) 248 CLR 42; [2012] HCA 16.

    12.    Roadshow Films at [22]-[26] (French CJ, Crennan and Kiefel JJ).

    13. Roadshow Films at [65].

    14. Roadshow Films at [112].

(b)   hosting “in Australia”

22. The second element in the definition of “internet content host” (set out at [13] above), requires that a person host internet content “in Australia”. There is an element of ambiguity in relation to this geographical requirement. On one view, it could require that the data be stored on a server in Australia. That reading might obtain some support from the terms of cl 40 in Sch 5 which confers power on the eSafety Commissioner to refer content to law enforcement agencies where the Commissioner is satisfied that “internet content hosted outside Australia is prohibited content …”. That inference may be drawn because the Commissioner is given power to serve a notice on internet service providers with respect to such content. Nevertheless, cl 40 is itself ambiguous and could be concerned with hosts who are themselves outside Australia and therefore outside the immediate control of local authorities.

23. The alternative reading of the geographical reference in the definition of “internet content host” in Sch 5, cl 3, is that it identifies a person in Australia who does hosting. When applying the definition in cl 91, which deals with liability of an internet content host or internet service provider under the law of a State or Territory, it may be inferred that Parliament was dealing with local laws applicable to persons amenable to the jurisdiction of local courts, in contrast to internet content hosts or service providers who have no presence in Australia.

24. To treat the geographical element as referring to the physical location of the server on which data is stored would be to adopt a meaning (i) without direct relevance to the statutory purpose, (ii) requiring information which will be unknown to a putative plaintiff, and (iii) which may be variable over time and possibly incoherent.

25. Many aspects of internet usage have changed since the enactment of Sch 5 in 1999. Social media platforms, for example, were at best in their infancy; Facebook did not exist; it is said now to have 15.6 million users (probably referring to accounts) in Australia. Nor was there reliance on “cloud” computing, which allows internet users, particularly businesses, to avoid the need for sophisticated and expensive data storage facilities by contracting that function to special storage entities. To know where a particular entity’s data centres are physically located will not necessarily determine where a particular internet user’s information, or hosted content, is physically stored. Indeed, it may be stored in more than one location. To require a person seeking to rely upon a State defamation law to identify where the defendant’s hosted content is physically located in order to know whether cl 91 is engaged would be impractical. Nor were these problems unappreciated, at least in principle, in 1999. As the Report which preceded the 1999 Amendment Act stated: [15]

“The act of communication is becoming more important than the means, or the environment, within which content is provided to people.”

15.    Australian Broadcasting Authority, Investigation Into The Content Of Online Services – Report to the Minister for Communications and the Arts (30 June 1996), p 43; referred to in the Explanatory Memorandum for the 1999 Amendment Act, p 7.

26. In Dow Jones & Co Inc v Gutnick,[16] the High Court considered the following submission as to where an online article was published.

“[20]   Dow Jones submitted that it was preferable that the publisher of material on the World Wide Web be able to govern its conduct according only to the law of the place where it maintained its web servers, unless that place was merely adventitious or opportunistic. Those who, by leave, intervened in support of Dow Jones [17] generally supported this contention. The alternative, so the argument went, was that a publisher would be bound to take account of the law of every country on earth, for there were no boundaries which a publisher could effectively draw to prevent anyone, anywhere, downloading the information it put on its web server. [18]

[21]   The rule propounded by Dow Jones may have a greater appearance of certainty than it would have in fact. ‘Adventitious’ and ‘opportunistic’ are words likely to produce considerable debate. Does a publisher's decision to have a server in a country where the costs of operation are low, or the benefits offered for setting up business are high, warrant either of these descriptions? Does a publisher's decision to have servers in two, widely separated, states or even countries warrant either description, or is it simply a prudent business decision to provide security and continuity of service? How is the user to know which server dealt with a particular request? Is the fact that one rather than the other server met the request ‘adventitious’?”

16. (2002) 210 CLR 575; [2002] HCA 56.

17.    The interveners, some of whom were based in the United States, some in the United Kingdom and some in Australia, published material on the World Wide Web. Some operated subscription web sites; some operated open access, non-subscription web sites.

18.    cf Ashcroft v American Civil Liberties Union (2002) 122 S Ct 1700 at 1708.

27. The Court held that publication causing damage to reputation occurs when material was available in comprehensible form, that is when the matter in electronic form is downloaded onto the computer (or other mobile device) of the person who has used a browser to download the material from the web server. [19]

    19. Dow Jones at [44].

28. The relevance of Dow Jones in this context is not to identify when and where publication occurred, but merely to note that the potential arbitrariness of the location of the server from which a defamatory publication was downloaded was understood at the time of the enactment of Sch 5 of the Broadcasting Services Act. Accordingly, the better view may be that the Parliament did not propose that cl 91 operate with respect to potentially adventitious and opportunistic considerations, but rather was engaged where the host of the internet content undertook its hosting function within Australia.

29. A further factor to be taken into account is that the law of a State or Territory identified in cl 91 will continue to operate in respect of the internet content host who is aware of the nature of the internet content. Given that it is the state of mind (including the state of mind of an individual attributed to a corporation) which is the primary criterion of operation in cl 91, the sensible result is that an overseas media company such as Dow Jones, which operated from New Jersey, USA is not an “internet content host” for the purposes of Sch 5 because it did not host material in Australia.

30. It would seem to follow that a publication on the internet can only give rise to liability under New South Wales law with respect to defamation if the publisher in Australia was aware of the nature of the particular content. To that extent, State law will operate concurrently with Sch 5 of the Broadcasting Services Act, pursuant to cl 90, but not otherwise.

Did the defendants publish the posts?

(a)   publication on the internet

31. This question was identified as a separate question, determined in the Common Law Division and argued on appeal without reference to cl 91 of Sch 5 of the Broadcasting Services Act and with limited reference to the operation of the Defamation Act. It must be answered on that confined basis.

32. With respect to the terms of the Defamation Act, regard was had both in submissions and by the primary judge, only to the existence of a defence of innocent dissemination under s 32(1). However, the purpose of referring to s 32 was to consider the dichotomy upon which the provision in part relied between a “first or primary distributor” and a “subordinate distributor”.

33. Several provisions of the Defamation Act were relevant. First, s 6 identifies the subject matter of the Act as “the tort of defamation at general law” and provides that the Act “does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).” The Act does not directly deal with publication, but identifies “matter” to include communication by means of the internet and by any other form of electronic communication, that is “by means of guided or unguided electromagnetic energy”. [20]

    20. Defamation Act, s 4, electronic communication; matter (b).

34. The express reference to the internet and forms of electronic communication require that other provisions of the Act must be read, so far as possible, as embracing publication by means of electronic communication, including by the internet.

35. Secondly, s 32 provides:

32   Defence of innocent dissemination

(1)   It is a defence to the publication of defamatory matter if the defendant proves that—

(a)   the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b)   the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c)   the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

(2)   For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person—

(a)   was not the first or primary distributor of the matter, and

(b)   was not the author or originator of the matter, and

(c)   did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

(3)   Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of—

(a)   a bookseller, newsagent or news-vendor, or

(b)   a librarian, or

(c)   a wholesaler or retailer of the matter, or

(d)   a provider of postal or similar services by means of which the matter is published, or

(e)   a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or

(f)   a provider of services consisting of—

(i)   the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or

(ii)   the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or

(g)   an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control, or

(h)   a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

36. Section 32(3)(f) deals with providers of services, including by “the operation of, or the provision of any equipment, system or service, by means of which the matter is … made available in electronic form”. Such a service provider, may be either a primary or a subordinate distributor, but not both: subs (2)(a). Subsection (3) provides a list of conventional subordinate publishers, for the negative purpose of saying a person is “not the first or primary distributor of the matter merely because” it falls within one of those categories. In most cases, subs (3) is likely to have no determinative effect; nevertheless, it demonstrates that such service providers fall within the terms of the provision and must be capable of being publishers.

37. Further, s 32(1) assumes that publication of defamatory matter has been established and provides a defence defined by reference to the capacity in which the defendant published. In terms, it is a defence against liability, not a denial of publication.

38. There are general law authorities which may be read inconsistently with that conclusion. Thus, in Lee v Wilson and Mackinnon [21] Dixon J, in explaining why the actual intention of a publisher was not an element of the tort, stated:

“But his liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional, and the publisher may be unaware of the defamatory matter. If, however, the publication is made in the ordinary exercise of some business or calling, such as that of booksellers, newsvendors, messengers, or letter carriers, and the defendant neither knows nor suspects, nor using reasonable diligence ought to know or suspect the defamatory contents of the writing, proof of which facts lies upon him, his act does not amount to publication of a libel.”

21. (1934) 51 CLR 276 at 288; [1934] HCA 60.

39. There is a difference of opinion in the authorities as to the effect of the general law defence of “innocent dissemination”, a term first used (it appears) in Emmens v Pottle. [22] In stating the elements of the defence, Romer LJ in Vizetelly v Mudie’s Select Library Ltd [23] said that, upon proof of the identified elements, the defendant may be held “not to have published” the defamatory matter. While the language of Dixon J in Lee v Wilson may have reflected that view, it has since been abandoned in Australia. Brennan CJ, Dawson and Toohey JJ in Thompson v Australian Capital Television Pty Ltd [24] noted the view that “it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication.”

    22. (1885-86) LR 16 QBD 354 at 357 (Lord Esher MR).

    23. [1900] 2 QB 170 at 180.

    24. (1996) 186 CLR 574 at 586; [1996] HCA 38.

40. Although the English Court of Appeal in Tamiz v Google Inc [25] adopted the “non-publication” reasoning, that approach was emphatically rejected by the Hong Kong Final Court of Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd. [26] As to the general law position in Australia, the reasoning in Thompson must prevail; as to statute, the language of s 32 is inconsistent with the non-publication approach.

    25. [2013] 1 WLR 2151 at [26]-[36].

    26. (2013) 16 HKCFAR 366 at [31] at [53] (Ribeiro PJ; Ma CJ, Chan PJ and Litton and Gleeson NPJJ agreeing).

41. Thirdly, s 32(1)(b) assumes that the defendant may have published the matter which it neither knew nor ought reasonably to have known was defamatory. On one view, adopted by the plaintiff, that language was consistent with the element of publication being a matter of strict liability; on the view adopted by the defendants, the provision was directed not to knowledge of the matter complained of, but to knowledge of the defamatory quality of the matter. Either reading is supportable and this particular provision does not assist in identifying the sufficient elements of publication.

42. The defendants’ submissions in this Court were that to be publishers, they must have been instrumental to, or a participant in, the communication. They relied upon the following statement adopted by Isaacs J in Webb v Bloch: [27]

“The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.”

27. (1928) 41 CLR 331 at 363-364; [1928] HCA 50.

43. As the defendants noted, that passage was cited with approval in Trkulja v Google LLC,[28] although, it should be added, for the purpose of explaining that it was not necessary for the plaintiff to plead whether Google was a primary or secondary publisher, or to plead the degree of participation in the publication.

    28. (2018) 263 CLR 149; [2018] HCA 25 at [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

44. The defendants also relied upon the principle underlying the following statement in Dow Jones v Gutnick:

“[26]   Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act — in which the publisher makes it available and a third party has it available for his or her comprehension.”

(b)   participation in publication by third party

45. The defendants submitted that they did not make the defamatory posts available to the public, nor did they participate in the publication of the defamatory posts, nor were they in any relevant sense “instrumental” in the publication of the defamatory posts. Rather, they administered a public Facebook page on which third parties published material. Perhaps with a degree of hyperbole, they submitted that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author. The defendants adopted a passage from the judgment in Oriental Press dealing with the position of a golf club sued on the basis of a defamatory poem posted on its noticeboard, and a building owner with defamatory graffiti placed on a wall, but did not adopt the outcome in that case. The passage the defendants accepted was as follows:

“[48]   … What this line of cases addresses are the conditions which must be satisfied before the occupier can be regarded as having turned himself into a publisher of the libel. That occurs only if the plaintiff shows that the occupier became aware of the libellous statement on his premises and allowed it to remain in place in circumstances which justify the inference that he had adopted or ratified its publication.”

46. However, in a passage cited with approval in Trkulja,[29] Ribeiro PJ in Oriental Press distinguished those cases from that of an internet platform provider, hosting a discussion forum. With respect to the latter he stated:

“[51]   The respondents plainly played an active role in encouraging and facilitating the multitude of internet postings by members of their forum. … [T]hey designed the forum with its various channels catering for their users’ different interests; they laid down conditions for becoming a member and being permitted to make postings; they provided users browsing their website access to the discussion threads developed on their forum; they employed administrators whose job was to monitor discussions and to delete postings which broke the rules; ….

[52]   The respondents were therefore, in my view, plainly participants in the publication of postings by the forum’s users and in that sense they were publishers from the outset ….”

29.    Oriental Press at [50]-[54]; Trkulja at [38], fn (57).

47. The defendants sought to distinguish this finding on the basis that they had played no such active role in relation to the postings on their Facebook page. The point of distinction may be accepted; however, it does not follow that they were not publishers. They facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory. Applying the general law as qualified by the provisions of the Defamation Act, including s 32, the primary judge did not err in concluding that, in the circumstances revealed in the evidence, the defendants were publishers of third party posts on their Facebook pages.

Scope of separate question

48. As noted above, the separate question was fixed for hearing (although not then adequately formulated) before judgment was delivered by the High Court in Trkulja. Mr Trkulja had commenced proceedings in the Supreme Court of Victoria against Google LLC, a company domiciled in the United States. The basis for his claim in defamation was that a Google search engine generated defamatory material about him. Originating process was served on Google in the United States and the company both sought to set aside the service out of the jurisdiction and have the proceedings summarily dismissed. The primary judge rejected Google’s contention that the proceedings had no real prospect of success on the basis that Google had not published the product of the search by its search engine. The Victorian Court of Appeal dismissed Google’s submission that there was no arguable case that it published the material, but upheld a submission that the plaintiff would have no prospect of establishing that the images generated were defamatory of him. That decision was reversed by the High Court. In the course of its reasons, the High Court dealt with the manner in which the Court of Appeal had dealt with the question of publication, stating (omitting references):

“[38]   McDonald J [the primary judge] was correct to hold that it is strongly arguable that Google's intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results. Properly advised, that was all that the Court of Appeal needed to say on the subject. Instead, although the Court of Appeal did not decide the appeal on the question of publication, their Honours made a purportedly determinative finding of mixed fact and law that a search engine proprietor, like Google, is a publisher of search results, including of autocomplete predictions, but that an innocent dissemination defence will almost always, if not always, be maintainable in a period before notification of an alleged defamation.

[39]   That was not an appropriate way to proceed. In point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult, especially in the relatively novel context of internet search engine results. And contrary to the Court of Appeal's approach, there can be no certainty as to the nature and extent of Google's involvement in the compilation and publication of its search engine results until after discovery. There are only the untested assertions of Google deponents. Furthermore, until and unless Google files a defence it cannot be known what defences will be taken (whatever Google might now say is its intention regarding the defences on which it will rely). Nor does it profit to conjecture what defences might be taken and whether, if taken, they would be likely to succeed. For whatever defences are taken, they will involve questions of mixed fact and law and, to the extent that they involve questions of fact, they will be matters for the jury. Given the nature of this proceeding, there should have been no thought of summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all.”

49. In the present case, there was discovery, presumably to the satisfaction of both sides of the record, prior to the hearing of the separate question. Further, witnesses were called and cross-examined. In my view, it would not have been inappropriate to deal with the question of publication as a separate question, were that all that was in issue. It was correct for the parties not to seek to determine by way of a separate question the characterisation of the defendant’s roles as primary or subordinate distributor, for the purposes of s 32 of the Defamation Act. As noted in Trkulja, that issue should not have been addressed prior to the defendants pleading their defences. It follows, as both parties submitted in this Court, that the primary judge was in error in dealing with the additional issues. Not only did they not form part of the separate question, which was not amended to allow such considerations, but it would have been inappropriate for it to be so amended.

50. The parties were united in their view that, in any further proceedings in the Common Law Division, neither side would be bound, nor should the judge give effect to, any findings made by the primary judge with respect to the characterisation of the defendants for the purposes of s 32 of the Defamation Act, nor as to the availability to any defendant of a defence under s 32. Consistently with the acceptance of that view in this Court, it is appropriate that the answer to the separate question be expressed in terms which reflect that outcome.

51. It is necessary to deal briefly with ground 4 in the notices of appeal. There was extensive evidence below, the bulk of which was not contentious, in relation to the capacity of the operator of a Facebook page (i) to prevent the posting of comments by third parties, (ii) to delete individual comments or posts, and (iii) to “hide” comments until they could be reviewed by an administrator. With respect to (i), the Facebook platform did not allow a host to prevent all posts on a public Facebook page. With respect to (ii), deletion after the event was undoubtedly possible and occurred when the defendants were notified of the concern as to the content of particular posts. Deletion did not, of course, prevent publication. With respect to (iii) it was common ground that Facebook permitted the filtering of posts by its own generic filters and by the administrator applying customised filters. By using common words, a filter could be designed which would “hide” most, if not all, posts. There was disagreement as to whether, with sufficient ingenuity, all posts could be hidden. It was not, however, disputed that the effect of “hiding” a post was to prevent publication to all except the administrator and the commentator’s own Facebook friends. The posts so hidden could then be individually assessed for defamatory content.

52. The challenged passage in the judgment read as follows:

“[223]   Here, 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.”

53. The judge also found that “it is impossible to delete in advance all comments to a particular extract” [30] and that “[b]y using a list of extremely common words, which any comment would be difficult to avoid, it is possible to hide, in advance, all, or substantially all, comments”. [31] It is true that the qualified terms of these findings had lost their qualification when restated at [223]. Any further hearing of the matter might, if the issue arose, have to resolve that inconsistency, if the findings were allowed to stand. However, as the matter has no relevance for present purposes, it is not necessary for this Court to resolve the inconsistency. The matter would only be relevant if a defendant ought to have anticipated that there would be defamatory comments in relation to a particular article posted by it and, if so, what it would reasonably be expected to have done in advance of any posting by a third party, to prevent defamatory comment being displayed. Whether this will ever be a live issue is unclear. It would depend upon the proper construction of s 32 and on any pleading of a defence under that provision (and, if raised, the operation of the Broadcasting Services Act). Nothing further need, or should, be said in relation to this matter.

    30.    Voller at [90(iv)].

    31.    Voller at [90(vi)].

Conclusion

54. On the limited basis upon which this appeal was conducted, the applicants have failed to demonstrate error in the affirmative answer given by the primary judge to the separate question. As the issue raised was one of some importance in a developing area of the law of defamation the applicants should have leave to appeal. However, the appeal must be dismissed with costs.

55. The Court should make the following orders:

1. Grant the applicants leave to appeal from the answer given to the separate question in the Common Law Division on 24 June 2019.

2. Direct that the draft notice of appeal in the white folder be filed within 7 days.

3. Dismiss the appeal.

4. Order that the applicants pay the respondent’s costs of the proceedings in this Court.

56. MEAGHER JA and SIMPSON AJA: The substantive proceedings before this Court are applications by Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd under s 103 of the Supreme Court Act 1970 (NSW) for leave to appeal from the primary judge’s answer to a separate question ordered for decision under Uniform Civil Procedure Rules, r 28.2. The question arose in defamation proceedings brought against each of the applicants, in respect of comments posted by third parties on its public Facebook page. The separate question was:

whether [the respondent] has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?

and was answered in the affirmative: Voller v Nationwide News Pty Ltd & Ors [2019] NSWSC 766. It will be seen (and it needs to be emphasised) that the question was confined to the issue of publication. That question did not arise in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 which concerned a claim for defamation against the page administrator and author of posts on a public Facebook page (Stoltenberg) and separately against the author of “likes” and further comments on one of Stoltenberg’s posts on that page (Loder). At first instance Stoltenberg was found to have published the material he “uploaded” and Loder was found to have republished one of those posts as well as publishing her own comment. None of this was contested on the appeal in that case.

57. In answering the separate question the primary judge expressed views about matters going beyond the issue of publication.

58. We agree with Basten JA that the applicants should have leave to appeal. The grounds of appeal are:

1.   The primary judge erred in holding (at [110]) that the appellant was a publisher and, therefore, erred in answering the separate question ‘Yes’.

2.   The primary judge erred (at [191]-[233]) by answering questions other than the separate question.

3.   The primary judge erred in holding (at [228]) that the appellant was a first or primary publisher in relation to the general readership of the Facebook page it operates.

4.   The primary judge erred in holding (at [29] and [213]) that it was possible to hide all comments on a public Facebook page.

59. The only ground relevant to the determination of the separate question is ground 1. Grounds 2, 3 and 4 are directed to observations and findings that were not relevant to the disposition of the separate question, but may be relevant to issues arising on the filing of defences. That has not yet occurred.

60. Two particular findings are the subject of grounds 3 and 4. At [228] the primary judge expressed the view that “the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher”. That holding, if made in respect of an issue arising on the pleadings and before the primary judge for decision, would be fatal to the availability to the applicants of a defence of innocent dissemination under Defamation Act 2005 (NSW), s 32. And at [29] and [213] the primary judge appears to have made findings that the applicants had the capacity to block or hide third party comments on their public Facebook pages, a matter which is contested and potentially relevant to the availability of the same defence.

61. With the benefit of the exchange of written submissions in this Court the parties agreed, correctly in our view, that the primary judge was in error in dealing with these additional matters and that his observations or findings in doing so were not and could not be binding on them. There remained, with respect to ground 4, a contest as to whether his Honour had found that the publishers of a public Facebook page were able to block or hide all, rather than substantially all, comments posted on that page by third-parties. As Basten JA observes, it is not necessary for this Court to resolve that contest.

The Bauer parties’ application to intervene

62. Prior to the hearing of the appeal, three unrelated media companies – Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd (“the Bauer parties”) – sought leave to intervene, and, alternatively, to appear as amici curiae. They did so “in support of the appeal” or alternatively on the question whether the applicants’ claims in defamation were subject to the Broadcasting Services Act 1992 (Cth), Sch 5, cl 91.

63. On the hearing of that application the Court announced that it would hear senior counsel “on the arguments”. Ideally, a non-party application for leave to intervene or to be heard as amicus should be determined before the commencement of the relevant hearing. In this case that did not occur. However having considered the merits of that application it is our view that it must be dismissed. Ultimately, there was no purpose or utility in granting the Bauer parties leave to intervene or to be heard on a question that was not raised in the appeal, and is not presently an issue in the underlying proceedings or one which could have any bearing on the outcome of the applications before this Court.

64. As the applicants succinctly observed in their written submissions:

The issue of whether cl 91 of Sch 5 of the Broadcasting Services Act 1992 (Cth) applies in this case does not arise (and did not arise) on the separate question, and should be resolved on a full factual basis and (if it arises) after the filing of defences.

65. The question whether Mr Voller had established “the publication element of [his] cause of action of defamation” did not address the application or operation of cl 91. That is not surprising, in circumstances where the applicants have not yet been required to file their defences, and have reserved their position with respect to reliance on that provision.

66. Focussing on the separate question, it was not suggested that the Bauer parties were subject to any defamation claims in which the same or a similar publication issue arises. Nor is it said that their legal interest in the outcome of that issue might be indirectly or contingently affected “following from the extra-curial operation of the principles enunciated” in the decision of this Court: cf Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54 at [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) and Levy v State of Victoria (1997) 189 CLR 579 at 601-602 (Brennan CJ); [1997] HCA 3.

67. In any event, the Bauer parties must be treated as having abandoned the part of their application seeking leave to be heard “in support of the appeal”. During the course of his argument senior counsel for those parties submitted that the primary judge had not erred in finding the applicants were publishers, describing that question as a “no-brainer”.

68. Rather what the Bauer parties apparently sought was that this intermediate appellate court would decide, in proceedings to which they were not parties, an issue involving questions of construction and of fact, which was not before the Court and not pleaded or raised as between the parties. Furthermore, they sought that it do so before the time for the filing of defences, and accordingly in circumstances where it was still open to the defendants to plead and rely on the application of cl 91.

65. The Bauer parties’ application had no merit and should be dismissed. As it was not opposed we do not propose that there be any separate order in relation to the costs of that application.

Ground 1

Relevant facts

70. Each of the applicants is a mass media publisher of newspapers circulating in NSW and/or the operator of television stations. Each places on its public Facebook page, for communication to Facebook users via the internet, “posts” usually consisting of a comment, image and headline relating to a news item in one of its paper or digital publications and invites comments from Facebook members which when made appear on the Facebook page and are available to be seen by all Facebook users “who can see the page” ([8]). Under each such news item and image appeared the following invitation:

71. In each proceeding the respondent claimed that comments posted by certain Facebook users conveyed imputations that were defamatory of him, and that the applicants were liable as publishers of those comments. By way of example, in his second amended statement of claim served on Nationwide News, the respondent pleaded that between December 2016 and February 2017 Nationwide News placed on its Facebook page a news item and photo concerning his incarceration in a juvenile justice detention centre in the Northern Territory, and that, following that publication, a number of individuals responded with comments that defamed him.

72. The respondent pleaded the “matter complained of” as including the image and accompanying words placed by Nationwide News on the Facebook page. However no issue arose in relation to any liability of an applicant for the separate publication of that image and accompanying words.

73. The respondent particularised his claim that Nationwide News was a publisher in a number of ways. He alleged, inter alia, that Nationwide News:

“(a) … chose to be the proprietor of a Facebook page which it made available to the public at large;

…

(c) … invited and encouraged readers of its publications to use its Facebook page and record observations on it;

(d) … chose to place the article about [the respondent] on its Facebook page;

….

(h) … could have chosen to monitor the observations by third parties recorded about the article, but did not do so”

74. Similar claims are made against each of the applicants. None has filed a defence. Rather, each sought to have the publication question determined first.

75. Before the primary judge the respondent relied on a report of Mr Ryan Shelley (the managing director of a social media and digital marketing agency) explaining the use of Facebook by media outlets.

76. Mr Shelley said that the use of Facebook encourages and facilitates ‘visits’ by Facebook users to a media outlet’s own websites. The number of such visits is measured for the purpose of aiding negotiations with potential advertisers. Mr Shelley added:

To increase the number of people who see content from a Page, Page Administrators typically seek high levels of engagement. That is, likes, comments and shares of that content…

For this reason, it is common for administrators of Pages to typically do what they can to encourage increased engagement on their posts so that their content is seen by a larger audience.

77. The reference to the or a Page administrator is to a person authorised by the “brand, entity (place or organisation) or public figure” for whom the public Page has been created to administer it in accordance with the Facebook terms of use. Mr Shelley also addressed, in some detail, the capacity of Page administrators to “hide and/or delete” comments after they have been posted. It is not necessary to address that evidence in disposing of the appeal.

78. Each applicant responded with evidence explaining how it managed its Facebook page. It is sufficient to refer to the evidence filed on behalf of Nationwide News, as there is no presently material difference between its position and that of the other applicants.

79. Nationwide News relied on an affidavit of Ms Brighette Ryan, a journalist employed as ‘Digital Night Editor’ of The Australian newspaper. Ms Ryan annexed to her affidavit three documents, going by the description:

Statement of Rights and Responsibilities;

Facebook Pages Terms;

Facebook Community Standards

all of which were issued by Facebook and current at the time of the publications of which the respondent complains.

80. The Statement of Rights and Responsibilities commences:

This Statement of Rights and Responsibilities … derives from the Facebook Principles, and is our terms of service that governs our relationship with users and others who interact with Facebook, as well as Facebook brands, products and services, … By using or accessing the Facebook Services, you agree to this Statement, as updated from time to time …

81. Clause 2, under the heading Sharing Your Content and Information, includes:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings …

82. Clause 17 defines Information to mean:

…facts and other information about you, including actions taken by users and non-users who interact with Facebook.

and Content as:

…anything you or other users post, provide or share using Facebook Services.

83. The Facebook Pages Terms include:

I. General

A. A Page for a brand, entity (place or organisation), or public figure may be administered only by an authorised representative of that brand, entity (place or organisation) or public figure (an ‘official Page’).

…

C. Content posted to a Page is public and viewable by everyone who can see the Page.

D. You are required to restrict access to Pages (through our gating functionality) as necessary to comply with applicable laws and Facebook policies, including our Community Standards.

84. Ms Ryan’s evidence included:

The Australian Facebook Page is the official page of The Australian newspaper on Facebook and is used to share content and connect with users of Facebook (who may comment on or share content posted to The Australian Facebook Page.) …

The Australian Facebook Page is publicly accessible to users of Facebook who are able to view and comment on content posted to those pages.

85. Ms Ryan described the process of using the public Facebook Page. Nationwide News posts a news item and image which includes a hyperlink to the relevant story on The Australian Website. Clicking on the hyperlink takes the reader to that story. Before or after doing so, the reader may ‘react’ to the story by selecting from a limited range of emojis signifying different responses. Each post also automatically includes options for readers to “Like”, “Comment” on or “Share” that post. These options are features “inherent” in every Facebook page. Ms Ryan said there is no way of preventing users from commenting by disabling this feature.

86. The Page administrator (cl I A) has a limited ability to restrict comments before they are posted by users. The means by which they might do so include blocking specific words or phrases by use of a “profanity filter”, banning specific users from posting comments and compiling lists of words (“moderated” words) which when included in a posted comment will automatically be ‘hidden’ from public view until the administrator chooses to ‘un-hide’ those comments. Comments may also be hidden or deleted after posting. However those comments would remain accessible to Facebook ‘friends’ of the user who posted the comment.

87. Ms Ryan’s affidavit was in part directed to the proposition that, once a public Facebook page is established, the entity permitted to use it has little or no control (at least in practical terms) over what is posted by users of Facebook. Accordingly, so the proposition appeared to be, notwithstanding that Nationwide News (like the other applicants) has established and maintained a public Facebook page, to which it invites and actively encourages participation and contribution from Facebook users, it bears no responsibility for publication of the content of any of their contributions. In relation to Nationwide News’ newspaper’s capacity to control or supervise the content of the reader’s comments when first made, Ms Ryan deposed:

The Australian’s Administrators occasionally monitored some of the comments posted by users to The Australian Facebook Page, but it would be onerous for us to monitor every comment.

Publication

88. Defamation is an actionable wrong that lies in the publication to a reader, listener or observer of matter that injures another person’s reputation. It is a tort of strict liability, in the sense that a publisher of defamatory imputations will be liable even in the absence of any intention to cause injury to reputation, and even if the defendant acted with reasonable care: Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288 (Dixon J, as his Honour then was); Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Unless material is communicated to another person there is no publication. Accordingly (Dow Jones v Gutnick at [26]):

it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.

89. The tort has its origin in the common law but in New South Wales is now, to a large extent, regulated by statute. Defamation Act 2005 (NSW), ss 6(1) and (2) provide:

“(1)     This Act relates to the tort of defamation at general law.

(2)     This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).”

90. That Act contains no definition of “publication”, and accordingly whether there has been publication is to be determined according to well-established common law principles understood in the context of the provisions of the Act. Section 4 acknowledges that those principles are to be applied to publication of matter relevantly including a program, report, advertisement or other thing communicated “by means of television, radio, the Internet or any other form of electronic communication”. Section 32, which provides a statutory defence of innocent dissemination, and in that context distinguishes between a “first or primary distributor” and a “subordinate distributor” of defamatory material, makes plain that the defence is to the “publication” of defamatory matter. Accordingly the “confusion” arising in relation to the common law defence of innocent dissemination and whether it justifies or justified a plea of “never published” does not arise in relation to the statutory defence. As to that confusion, see the discussion of Brennan CJ, Dawson and Toohey JJ in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 585-586; [1996] HCA 38 and of the Hong Kong Court of Final Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at [24]-[31] (Ribeiro PJ, Ma CJ, Chan PJ, Litton NPJ and Gleeson NPJ agreeing).

91. In relation to the innocent dissemination defence under the common law, in Lee v Wilson & MacKinnon Dixon J said:

The cause of action [in defamation] consists in publication of the defamatory matter of and concerning the plaintiff. It might be thought, therefore, that, in any event, this warranted or required some investigation of the actual intention of the publishers. But his liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional, and the publisher may be unaware of the defamatory matter. If, however, the publication is made in the ordinary exercise of some business or calling, such as that of book sellers, news vendors, messengers, or letter carriers, and the defendant neither knows nor suspects, nor using reasonable diligence ought to know or suspect the defamatory contents of the writing, proof of which facts lies upon him, his act does not amount to publication of a libel. (emphasis added)

92. Dixon J’s statement that any participation of the innocent disseminator, which might otherwise constitute publication, “does not amount to publication of a libel” is perhaps ambiguous and to be understood as meaning that the innocent disseminator, although a publisher, is not liable in law for any defamatory imputations conveyed by that publication. There is a distinction between responsibility for publication and liability for the communication of the defamatory content of the publication. In this context we cannot, with respect, agree with Basten JA (at [39]) that, reading Dixon J as adopting the “never published” analysis, any such principle should be taken to have been abandoned in Australia. True it is that, in Thompson v Australian Capital Television Pty Ltd the plurality noted the reformulation of the relevant principle proposed by the authors of Duncan & Neill on Defamation (2nd ed, 1983) p 110, fn 3 as follows:

It is submitted that it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication

but their Honours did not expressly endorse or adopt that reformulation. On the other hand, in Dow Jones v Gutnick, Gleeson CJ, McHugh, Gummow and Hayne JJ at [25] reiterated Dixon J’s proposition in almost identical terms, citing Lee v Wilson and McKinnon.

93. None of this is presently relevant, the applicants not relying on the “never published” principle as an answer to the separate question, no doubt because they accepted that they are not in the same position as, nor any position analogous to “book sellers, news vendors, messengers, or letter carriers”, all of whom, it may be said, facilitate the publication of defamatory material after it has been composed and ordinarily without actual or constructive knowledge of any defamatory content. Here, the third parties’ composition, comment and publication occur without any further and specific acts of participation by the applicants. That is because the facility subscribed for and used by the applicants enables all of that to occur without their further intervention. In those respects that facility is similar to one offered by a talk-back radio station broadcasting live commentary from listeners on the telephone.

94. The classic statement in this country of what constitutes publication remains that of Isaacs J in Webb v Bloch (1928) 41 CLR 331 at 363-4; [1928] HCA 50:

The meaning of “publication” is well described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439, in these words: “The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.” In Starkie on the Law of Slander and Libel, 1st ed. (1830), vol. ii., at p. 29, it is said: “The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act” &c. In Parkes v. Prescott (1869) LR, 4 Ex. 169, Giffard Q.C. quotes from the second edition of Starkie: “All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.” In R. v. Paine (1696) 5 Mod. 163, it is held: “If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.” A little later, in R. v. Drake (1706) Holt 425 that law was reaffirmed. (italics in original)

95. Although the applicants’ written submissions query the correctness of aspects of the commentaries in the 5th edition of Folkard and 2nd edition of Starkie it is not necessary to engage with them in that respect in view of the continuing acceptance of the correctness and application of Isaacs J’s description of the meaning of the term “publication”, as confirmed in Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

… it is not the practice to plead the degree of participation in the publication of defamatory matters, for the reason that all degrees of participation in the publication are publication. As Isaacs J held in Webb v Bloch:

“The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him." (emphasis added)

The applicants’ contentions

96. In oral argument the applicants formulated the relevant question as being whether it could be said of them that “they were instrumental, that they participated to some degree, in the actual publication of the [third party] defamatory comments”. Their argument in support of the conclusion that they did not has a number of strands.

97. First, it is said that not every person who plays a “but for” role in the communication of defamatory material participates in the publication or “makes it available” (the language in Dow Jones v Gutnick at [26]); and that not every person who is aware of a risk that something they do will give rise to defamatory comment is a publisher. Each of these propositions may be correct. However neither engages with the relevant question.

98. The applicants separately subscribed to a facility which in the case of Nationwide News permitted it to have and use an ‘official’ Facebook page for the Australian newspaper administered by its authorised representative. The content posted by Nationwide News to that page was “public and viewable” by users of Facebook. That content invited and encouraged such users to “Like” or “Comment” on it. The users did so via a “comment box” and that comment was displayed directly underneath the content to which it responded and was viewable by any visitor to the Page. Accordingly that relevant question is whether in subscribing for and using the Facebook page to make their own posts and the comment posts of other Facebook users “public and viewable” on the Page the applicants were instrumental and participated in the publication of those comments.

99. In the course of argument senior counsel for the applicants ultimately accepted that if participation consisting of subscribing for the Page and inviting comments in response to posted news items (where those comments when made would be public and viewable on the Page) without more was as a matter of law “sufficient participation in the publication of that comment that you are a publisher” then the separate question was correctly answered.

100. As has already been noted, having concluded that each of the applicants was a publisher ([190]) the primary judge went on to consider whether they were “subordinate or secondary publishers” for the purpose of the availability of the innocent dissemination defence under s 32. In that context his Honour discussed “control” (ability to prevent publication) and “ought to know” (knowledge or means of knowledge of defamatory matter). Those issues arise in determining whether a publisher is to be treated as a primary or subordinate publisher and, in the case of the latter, whether it has the benefit of that defence.

96. The applicants argued in this Court that, whilst it was accepted that neither of these issues arose, there remained the spectre of the “ought to know” question and its relevance to publication. That was in part due to the respondent’s pleaded reliance on the following “particular of liability for publication”:

(e) [Nationwide News] knew or should have known that there was a significant risk of defamatory observations about the plaintiff being placed by third parties on the first Facebook page in the guise of “comments” on the article.

102. In oral argument, the applicants maintained, relying in part on the existence of this particular as involving some form of concession, that the respondent’s case was that each had participated or been instrumental in the publication of defamatory matter because of what each “ought to have known and ought to have done” about the defamatory nature of the relevant comments.

103. This argument does not address the publication question formulated in [96] above. Nor does it accord with the respondent’s submissions before this Court which accepted that what the applicants knew or ought to have known about the defamatory content of the comments was not relevant to whether each participated in their publication.

104. Under the common law a person may be liable for publishing defamatory material if by an act or conduct he or she intentionally assisted in the process of conveying the words bearing the defamatory meaning to a third party: Oriental Press at [19] citing Dow Jones v Gutnick at [26]. There was no suggestion that the participation of each applicant in the publication of the users’ comments was not “intentional” in that sense. Each act relied on as constituting participation was undertaken knowing that an outcome of operating the Page was that any third party comment would be published to any Facebook user.

105. Secondly the applicants submitted that the conclusion that they are liable for the publication of the third-party comments would involve the imposition of a “novel” tortious liability by reason of their failure to prevent publication by third parties. In our view that is not so.

106. It is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person. For example in Webb v Bloch the members of a committee were held liable for a defamatory publication authorised by one member in circumstances where its content and falsity was not known to all of them. More to the point for present purposes are the cases involving actions brought against the owners or occupiers of premises in which unauthorised third parties have affixed defamatory statements on a noticeboard or scrawled such statements as graffiti on the walls of their premises. These cases include Byrne v Deane [1937] 1 KB 818, discussed in Oriental Press at [35]-[40], the decision of Hunt J in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Rep 81-127 and Frawley v State of NSW [2006] NSWSC 248.

107. Addressing Urbanchich and Frawley, in each case the property owned by the defendant was used by a third party as a vehicle for the publication of defamatory imputations. There was no suggestion, in either case, that the defendant had, expressly or implicitly, invited the use of its property as a means of communication in the way that occurred. In each case the defendant was unaware of the use of its property for that purpose until notified of the existence of the posters (in the case of Urbanchich) or internet material (in the case of Frawley). In neither case could the defendant be said to have participated or been instrumental in the publication of the defamatory matter prior to their becoming aware that their property had been used for that purpose. They could, however, be said to have acquiesced in the continued publication of that matter from the point in time when they acquired that knowledge. Accordingly, in each case, failure to take steps to remove the material (Urbanchich) or to prevent access to it (Frawley) was sufficient to justify a finding that the defendant had thereafter participated in the continued publication.

108. The applicants sought to distinguish Urbanchich on two bases. The first is that they do not own their relevant Facebook Page; and the second, that when their attention was drawn to the defamatory publications they were promptly removed. Neither of these points of distinction affects the outcome of the publication issue in this case.

109. As to the first point of distinction, in relation to the use of a Facebook page ownership is an elusive and perhaps inapt concept. The evidence is clear that the relevant Facebook pages were created for and used by the applicants on the basis that Facebook users generally would be invited to post comments on the Page with the result that their comments would also be made available to Facebook users generally. In the language of Urbanchich at 69,193, by the terms of their arrangements with Facebook, and by their invitations to members of the public to comment on their news items, the applicants accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments. They did so from the time they made their Facebook pages available to those who wished to comment, and by actively inviting comment. It was the applicants who provided the vehicle for publication to those who availed themselves of it. The character of the applicants’ conduct relied on as constituting participation in publication is not affected by the lack of attribution of “ownership” to them of any part of the Facebook facility or service.

110. The second point of distinction is immaterial because the applicants participated in the publication of the third party comments from the outset. The same analysis was undertaken and conclusion reached in relation to the publication by the internet discussion platform providers in Oriental Press at [50]-[52].

111. Contrary to the applicants’ submission, the concept of publication and the fact that more than one party may participate in the making of material available for comprehension by a third party has nothing to say about the imposition of a liability on a person for the deliberate or negligent conduct of another party (see for example Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15). Each applicant’s potential liability as publisher arises not in any sense from a failure to take action to protect a class of persons from harm or to prevent a particular person from injuring any member of that class. Rather the effect of the principle confirmed in Trkulja v Google is that a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees.

112. Finally, the applicants submitted that as users of Facebook in common with other users, they do not relevantly participate in a communication merely because another user of the same service posts defamatory comments. That may be so, however as the evidence shows, the applicants are not merely using a service provided by Facebook which is equally available to others for the purpose of publishing comments. The applicants subscribe for a specific Page and encourage and facilitate the making of comments by third parties which when posted on the Page are made available to Facebook users generally.

113. In the result the primary judge did not err in answering the separate question in the affirmative.

Conclusion

114. In addition to the orders proposed by Basten JA at [55] we consider the following order should be made:

(5)   Dismiss the notice of motion of Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd filed 23 August 2019.

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Endnotes

Amendments

18 November 2021 - Footnote 3 - Amending s 261B to s 216B.

[13] - Correcting "electronic mail" in cited definition (c) to read "email".

Decision last updated: 18 November 2021