The New South Wales Supreme Court recently handed down a decision that has significant implications as to how companies need to manage their Facebook pages so as to avoid potential defamation claims; Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766
In 2016, the ABC's Four Corners programme presented its investigation into the treatment of youths at Northern Territory detention centres. Following the programme and the subsequent Royal Commission into the Protection and Detention of Children in the Northern Territory, Dylan Voller became well known as a result of the treatment he received at the Don Dale Youth Detention Centre.
The investigation and Royal Commission received significant media attention in Australia, with various news outlets and sites covering the stories around it in detail.
In 2016 and 2017, Nationwide News, Fairfax Media and Australian New Channel, posted various news stories on their public Facebook pages regarding the investigation and Royal Commission.
Comments left by members of the public on the Facebook stories and pages were allegedly defamatory against Mr Voller.
Mr Voller commenced defamation proceedings in the NSW Supreme Court against the news companies as operators of the public Facebook pages.
Issues considered by the Court
The preliminary question to be answered was whether each news company was liable for comments left on its public Facebook page.
The Uniform defamation laws in Australia require a plaintiff to establish the following threshold elements for a defamation suit:
- the communication has been published by the defendant to a third person;
- the communication identifies (or is about) the plaintiff; and
- The communication is defamatory.
In this case, the Court was only concerned with the first element. If Mr Voller failed at this first step, the Court would not need to decide elements two and three.
The Court assessed how third party comments are published to the world on a public Facebook page and how a public Facebook page operates. This involved significant expert evidence being led about how Facebook operates generally, how its algorithm may influence the visibility of posts and any tools available to moderators of any particular page to monitor comments left by the public.
For each news company, the Court considered the volume of visitors to its main news website and the percentage of those visitors who were prompted or channelled there by the public Facebook page. Of importance to the Court was the purpose or function of the public Facebook page for each company, which was ultimately to channel users to its main news website to optimise readership and advertising revenue.
The Court received expert evidence about the mechanisms in place to monitor and moderate unsavoury behaviour on the public Facebook page, being to:
- Completely block all comments from being made on the page;
- Hide comments on the page, either for the purpose of ensuring that only friends of the commentator can read the comments; or
- Arrange all comments to be sent to the administrator for review and release, if appropriate.
The Court found that the news companies were each publishers as the administrator of a public Facebook page effectively authorises publication of the comments on each post or story if he/she/it does not monitor or moderate appropriately the publication of comments. The extent of publication of a comment is wholly within the hands of a company that operates a public Facebook page because of the ability to moderate the comments.
The elements of publication were set out by the Court as follows:
- When a third party comments on a public Facebook page, that is the first time the comment is a comprehensible form to the vast bulk of readers;
- It is from that publication that the comment is downloaded onto the computer of the person who is gaining access to the public Facebook page;
- The comment's presence on the public Facebook page allows third party users to gain access, that is, the operation of the Facebook algorithm promoting stories or content to like minded people perpetuates the publication of the comments as the more comments a story gets, the higher it is "bumped" in the Facebook algorithm and therefore shown to more users; and
- It is the capacity to exercise the final right of approval that renders the distributor or page operator liable for defamation because of publication.
The purpose and nature of the Facebook pages was critical to the Court's decision. In particular, the Court was concerned that news companies were not only operating a Facebook page and providing a forum for discussion, but also encouraging discussion and promoting it for their own commercial gain.
The majority of corporate Facebook pages in Australia will be in operation to promote the relevant business for commercial gain.
For companies operating a public Facebook page, you should immediately consider the ways in which you can monitor or moderate comments to reduce your liability for the behaviour of third party users.
For insurers providing multi-media or defamation cover, it will be benefit to request details of the existence of any public Facebook page and the monitoring processes in place prior to writing any policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.