Australia: Social media users can be publishers of comments on their social media posts in to establish defamation.

The recent majority decision by High Court of Australia case Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 confirmed the Supreme Court of New South Wales decision on appeal that, when publishing content relating to news stories about Mr Voller, on a respective public Facebook pages, three media organisations were liable for the publication of allegedly defamatory comments that were posted by third-party Facebook users in response to their Facebook publications.

The Voller decision found when publishing social media content, the person who published that social media content will also be the publisher of any comments related to it by third-party social media users. A majority of the Court held that whether the person is liable as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, "participated" in the communication of the defamatory content to a third person. The decision confirmed by creating a public social media page and publishing content to it, a person facilitated and encouraged the publication of comments from third-party social media users.

The Applicants had raised the Court of Appeal of England decision Tamiz v Google Inc asserting that a person must have knowledge of the relevant defamatory content and intend to publish it. The High Court dismissed the Applicant's argument in this regard. Therefore, it is not required that the publisher of the content has knowledge of such a defamatory comment by a third-party but it may be relevant.

Further, the defence of Innocent Dissemination was considered in Voller and the High Court clarified that the defence of Innocent Dissemination would only be available once defamation is established. Therefore, in order for Innocent Dissemination to apply, the element of publication of the defamatory content must first be met.

What does this mean for a person publishing content on social media?

Whilst the Voller decision related to media organisations it effectively extends to all people and organisations who publish content on their various internet-based platforms where the platform allows third-parties to comment.

Therefore, it is imperative that anyone or any organisation with a web presence that publishes content, actively monitor and moderate the comments of third-parties to limit their liability in defamation. Most social media platforms including Facebook provide features to prevent social media users from commenting on the published content.