17 Jul 2020[Editor’s note: Changes to online defamation laws in NSW and the ACT came into effect in July 2024. Please see New online defamation defence for publishers “innocently disseminating” third party comments.]
A recent NSW Supreme Court judgement ruled major media outlets can be held responsible for defamatory social media posts made by members of the public on their internet sites.
Publishers of articles are also publishers of reader comments
The judgement, which was confirmed by the Court of Appeal, found that media companies which post articles on websites like Facebook are also publishers of any resulting comments posted subsequently by readers on those web pages. (See Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.)
The case centred on Dylan Voller, a 23-year-old whose poor treatment in custody at the Northern Territory’s Don Dale Youth Detention Centre led to a 2016 Royal Commission.
Media companies should have monitored or hidden defamatory comments
Mr Voller alleged defamatory comments were made about him by members of the public in posts that appeared on the Facebook pages of Fairfax Media (now Nine Entertainment Co), Nationwide News and Sky News.
His lawyers successfully argued the media companies should have known there was a “significant risk of defamatory observations” after publishing the articles about him online, and that they should have monitored or hidden the defamatory comments.
The court said the media companies provided the forum for the publication of the comments and encouraged them for their own commercial purposes. Content producers encourage reader comments because they want “engagement” with readers, as it brings in more advertising.
Media giants may take Voller decision to High Court
But what happens if someone copies the news story and places it on their own Facebook page or other social media site? Is the media group that created the story still liable when the defamatory comment is not on a web page it controls?
The law can have trouble keeping up with technological developments and many court results depend on precedence.
The media giants may yet take the Voller case to the High Court, as the Supreme Court decision is likely to prove very costly for them.
Review of NSW defamation law by Council of Attorneys-General
The judgement is sure to be considered as part of a national review of the defamation laws currently underway.
After a string of massive defamation payouts delivered against media companies, the defamation working party established by the Council of Attorneys-General is conducting a Review of Model Defamation Provisions.
The working party is considering a ream of legislative changes to defamation law, including whether there should be a cap on damages, a defence of public interest and the introduction of a serious harm threshold.
The Voller judgement leaves the door open not only for Mr Voller, but also many others to sue a Facebook page owner for defamatory imputations conveyed by what the judges described as “matter composed by another person”.
Retractions, apologies and monetary compensation for offensive social media posts
I have been assisting many clients, including business owners, who feel they have had their reputation damaged and who are suffering and will continue to suffer economic and non-economic loss due to untruthful comments posted on Facebook pages.
Apart from getting offensive social media posts deleted and obtaining retractions and apologies from the authors of offensive postings, we can seek that Facebook page owners pay monetary compensation via negotiated offers of amends, without necessarily having to go to court.
Media companies aren’t the only groups which can be held liable for the social media posts of others on the internet. Businesses, celebrities and influential people can potentially be held responsible for things said by others on their websites and social media pages.
They will need to ensure pre-emptive measures are taken. This judgement shows that the gates are not all closed for offended parties, be they individuals or businesses.
For more information, please see Social media defamation: be cautious when posting or re-posting online comments, reviews and links.
