The High Court has handed down a hugely significant decision regarding whether media companies are responsible for potentially defamatory statements posted by third party users on the Facebook pages established and operated by the media companies. By a majority decision the High Court held that the media companies were, for the purposes of defamation law, the publishers of third party posts which were posted on the Facebook pages of the media companies in response to news stories posted on the Facebook pages by the media companies.
The position taken by the media companies in the proceedings was that:
- they did not make the defamatory comments available to the public;
- they were not instrumental in the publication;
- they merely administered a public Facebook page on which mi>bers of the public could publish material; and
- to be a publisher for defamation purposes the defendant must intend to communicate the defamatory matter complained of rather than just provide the platform on which it is communicated.
However five of the High Court judges (by way of two separate judgments) did take the view that the media companies ought be regarded as the publishers of the third party posts. The conclusion outlined in one of these joint judgments was as follows:
"Each appellant ( (being the media companies ) intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page and posted content on that page. The creation of the public Facebook, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were therefore publishers of the third party comments."
This was the view of the majority notwithstanding that the "Comment" function was a standard feature of the Facebook service which could not be disabled and comments could not be deleted in advance.
Two other judges, who each delivered their own separate judgments, took a different view. Edelman J took what might be described as a compromise approach and held that the news stories posted by the media companies were not an invitation to the world at large to post comments on anything and everything however unrelated to the news story. In Edelman's view, the media companies ought only be liable if the comments posted had some connection to or relevance to the news story posted by the media company. For example, if the media company posted a story about the weather the media company ought not be liable for third party defamatory posts made about a completely unrelated individual.
Steward J adopted an approach most favourable to the media companies and stated that, in his view, by maintaining a public Facebook page and posting news stories on it the media company is just commencing an electronic conversation. And even though the media companies posted such news stories on Facebook with the intent of promoting or encouraging members of the public to make comment the media company ought not be construed as the publisher of those subsequent posts unless it could be said that the media company had procured or provoked the defamatory comment made by the member of the public.
This High Court decision has major implications for any business which maintains a public Facebook page on which potentially defamatory comments could be posted. Or indeed any business which operates or maintains a social media platform on which subscribers, consumers or members of the public can make posts.
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