KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
S236/2020
FAIRFAX MEDIA PUBLICATIONS PTY LTD APPELLANT
AND
DYLAN VOLLER RESPONDENT
S237/2020
NATIONWIDE NEWS PTY LIMITED APPELLANT
AND
DYLAN VOLLER RESPONDENT
S238/2020
AUSTRALIAN NEWS CHANNEL PTY LTD APPELLANT
AND
DYLAN VOLLER RESPONDENT
Fairfax Media Publications Pty Ltd v Voller Nationwide News Pty Limited v Voller Australian News Channel Pty Ltd v Voller
[2021] HCA 27
Date of Hearing: 18 May 2021 Date of Judgment: 8 September 2021
S236/2020, S237/2020 & S238/2020
ORDER
In each matter:
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
N J Young QC and P D Herzfeld SC with L E Barnett for the appellant in each matter (instructed by Ashurst)
P W J Gray SC with R W Potter SC and L A R Goodchild for the respondent in each matter (instructed by O'Brien Criminal and Civil Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fairfax Media Publications Pty Ltd v Voller Nationwide News Pty Limited v Voller Australian News Channel Pty Ltd v Voller
Defamation – Publication – Where appellants were media companies – Where each appellant created, operated and maintained public Facebook page – Where each appellant created posts on Facebook page hyperlinking to news stories referring to respondent – Where third-party Facebook users left "comments" on appellants' posts – Where comments alleged to be defamatory of respondent – Whether appellants "publishers" of comments – Whether intention to communicate defamatory matter necessary for appellants to be publishers.
Words and phrases – "communication of defamatory matter to a third party", "defamation", "digital newspaper or broadcast", "encouraged and facilitated", "Facebook comments", "Facebook page", "innocent dissemination", "intention to publish defamatory matter", "internet platform providers", "participation", "participation in the process", "publication", "publisher", "rebuttable presumption of publication", "strict liability", "third party".
KIEFEL CJ, KEANE AND GLEESON JJ. The appellants, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, publish newspapers which circulate in New South Wales or operate television stations, or both. They each maintain a public Facebook page on which they post content relating to news stories and provide hyperlinks to those stories on their website. They invite comment on the posted content from members of the public who are Facebook users. Comments which are made appear on the Facebook page and are available to be seen by other Facebook users.
In each of the three proceedings brought in the Supreme Court of New South Wales, the respondent claimed that following the appellants posting about particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.
The parties agreed to the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Fairfax Media Publications Pty Ltd v Voller
Sign in free to access the full text
Details
AGLC
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Case
[2021] HCA 27
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from decisions of the Court of Appeal of New South Wales concerning defamation proceedings brought by Mr Voller against Fairfax Media Publications Pty Ltd and other media companies. The dispute centred on whether the media companies were "publishers" of allegedly defamatory comments made by third-party Facebook users on public pages operated by the companies. These pages typically featured hyperlinks to news stories, and the standard Facebook functionality allowed users to comment on these posts.
The central legal issue before the High Court was whether the media companies, by maintaining public Facebook pages and posting content that invited comments, were publishers of defamatory material posted by third parties. This required the court to consider the nature of publication in the context of online platforms and whether an intention to communicate defamatory matter was a necessary element for an entity to be considered a publisher. The court also had to determine if the companies' facilitation and encouragement of comments on their pages constituted participation in the publication of those comments.
The High Court, dismissing the appeals, reasoned that the media companies were indeed publishers of the defamatory comments. The court applied the established principle that publication occurs when defamatory matter is communicated to a third party. It found that the companies, by creating and maintaining public Facebook pages, actively encouraged and facilitated the posting of comments by users. The ability to control or delete comments, even if not always exercised, demonstrated a level of participation in the process of publication. The court held that the companies' actions went beyond merely providing a platform, and that their engagement with the Facebook platform, which invited and displayed user comments, made them participants in the communication of that content to the public.
Consequently, the appeals were dismissed, upholding the decisions of the courts below that the media companies were publishers of the defamatory comments made on their Facebook pages.
Orders
Orders of the court
In each matter:
Appeal dismissed with costs.
Background
Background to the litigation
The primary judge (Rothman J) answered the separate question in the affirmative[2]. Each of the appeals from that decision was dismissed[3].[2]Voller v Nationwide News Pty Ltd [2019] NSWSC 766.[3]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700.Background facts The appellants each maintain a public Facebook page on terms of use agreed with Facebook. The page is used by each appellant to share content and connect with Facebook users. The page is publicly accessible to users, who are able to view and comment on content posted to that page. The use by each appellant of their Facebook page usually involves the posting of a hyperlink to a news story, with a headline, a comment and an image. Clicking on the hyperlink takes the reader to the full story on an appellant's news website. Readers are invited, by options which appear under the post, to "Like", "Comment" on or "Share" the post. These options are standard features of a Facebook page. Comments which are made by users appear on the page and are available to be seen by all Facebook users who can see the page. The Facebook page used by each appellant is managed by a Page administrator, the person or persons authorised by the appellant to administer it in accordance with Facebook's terms of use. There was evidence before the primary judge, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked. Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to "hide" most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook "friends". Hidden comments could then be individually assessed by an administrator. If sufficient staff were allocated to perform this task, comments could be monitored and un-hidden if approved by an administrator. The primary judge found, as might be anticipated, that certain posts would be expected to draw adverse comments about the person who was the subject of the news story. It was not in dispute that the use of a Facebook page encourages and facilitates visits by third-party users to a media outlet's own website. The number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and the revenue from advertising on both the page and the digital newspaper or broadcast.The Defamation Act 2005 (NSW) Section 6 of the Defamation Act 2005 (NSW) states the subject matter of the Act to relate to "the tort of defamation at general law". It 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)".
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND GLEESON JJ
GAGELER AND GORDON JJ
EDELMAN J
The Defamation Act makes provision, in s 32, for a defence of innocent dissemination. A defence of this kind has its origins in the common law. No question as to the availability of the statutory defence arises with respect to the answer to the separate question. Nevertheless, the appellants refer to the cases which developed the defence at common law and later observations about those cases. The appellants submit that the cases illuminate what it means to be a publisher.The argument and decision below The appellants argued their cases in the Court of Appeal on the basis that, to be publishers, they must have been instrumental to, or a participant in, the communication of the alleged defamatory matter. This was a correct approach and followed the meaning of publication given in Webb v Bloch[6], to which reference is made later in these reasons.[6](1928) 41 CLR 331 at 363-364. The appellants argued that they did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication[7]; they merely administered a public Facebook page on which third parties published material. They submitted to the Court of Appeal that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.[7]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 [45]. Reliance was also placed by the appellants on cases which involved actions brought against owners or occupiers of premises in which unauthorised third parties affixed defamatory statements on the wall of a premises[8] or scrawled them as graffiti on the walls of a structure[9]. In cases of this kind the occupier has been regarded by the courts as a publisher only if, after becoming aware of the statements, the occupier allowed them to remain in place and the circumstances justified an inference that they had accepted responsibility for the continuing publication of the statement by adopting or ratifying it.[8]Byrne v Deane [1937] 1 KB 818.[9]Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127. In a case to which reference was made in the judgments in the Court of Appeal[10] it had been held that internet platform providers which hosted a discussion forum were in a different position from the occupiers referred to in those cases. Unlike the occupiers, the providers had encouraged and facilitated postings by members of the forum and were therefore held to be participants in their publication from the outset[11].[10]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366.[11]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 387 [51]-[52]. Basten JA accepted that the appellants played no such active role, distinguishing them from the internet platform providers in that case, but nevertheless considered the appellants to be publishers, as did Meagher JA and Simpson A-JA[12]. Each of their Honours pointed to the appellants having facilitated the making of comments by third parties which then became available to others. Meagher JA and Simpson A-JA pointed out that the appellants invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might avail themselves of it. Their Honours upheld the primary judge's answer to the separate question, that the plaintiff had established the element of publication.[12]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 [47], 724-725 [108]-[110].
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND GLEESON JJ,
GAGELER AND GORDON JJ,
EDELMAN J