By Paul Gregoire and Ugur Nedim
Former Don Dale Youth Detention Centre detainee Dylan Voller was successful in a case brought against three of Australia’s largest media organisations last year.
The First Nations man claimed the companies, as publishers, were liable for comments third parties posted on their Facebook pages.
Voller’s mistreatment and brutalisation at the hands of youth justice officers at the notorious NT juvenile gaol sparked a royal commission. And the articles posted on the organisations’ social media pages that sparked the comments were in relation to his time spent in detention.
The civil case was brought against Fairfax Media, Nationwide News and Australian News. It involved statements that cast aspersions about Voller posted between July 2016 and June 2017 in the comment sections of articles on the Facebook pages of The Australian, SMH and other publications.
NSW Supreme Court Justice Stephen Rothman ruled on 24 June last year that media outlets can be considered the publisher of third-party comments on their Facebook pages and therefore, the organisations are liable for them.
“Each defendant was not merely a conduit of the comment,” his Honour said. “It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.”
The court didn’t, however, make a judgement on whether the comments themselves were defamatory.
Following the controversial ruling, the media giants moved to appeal the decision in the NSW Court of Appeal (NSWCA). And just last week, the court dismissed the challenge maintaining that the outlets were indeed responsible for the publication of any comments made on their pages.
The grounds of appeal
The three media organisations appealed the initial decision on 17 December last year on four grounds. The first was that the primary judge made an error in finding the companies were the actual publishers of the comments, which is the ground that the unsuccessful appeal rested upon.
The other grounds involved whether the justice was wrong to answer side questions raised during the case, that he made an error in considering the media outlets the “first or primary publisher”, and that his Honour was wrong in finding it was possible to hide all comments on a Facebook page.
The NSWCA panel of justices found that the three last grounds were not relevant to the appeal case, and the primary judge shouldn’t have considered these points in the first place. So, it was not necessary for the court to consider these matters.
The issue of publication
The Supreme Court set out that the mass media organisations used Facebook pages to circulate their news items via posts that allow users to comment beneath them.
Voller claimed that the outlets were liable for the content of the comments as they could have been monitoring them.
However, none of the organisations has filed defences over the charge of defamation, but rather they choose to have determined whether they were the actual publishers of the comments in the first place.
The court explained that defamation involves the publication of “matter that injures another person’s reputation”, of which the publisher is responsible regardless of whether they sought to cause any harm or took care to avoid it.
The tort of defamation is today regulated by the Defamation Act 2005 (NSW), which doesn’t contain a definition of publication.
So, publication is determined “according to well-established common law principles understood in the context of the provisions of the” legislation.
The classic definition of publication in this country is contained in the 1928 High Court case Webb versus Bloch, which outlines that “without reference to the precise degree”, an individual that lends assistance to something being published has taken part in its publication due to their “instrumentality”.
The media organisations questioned whether it could be said that “they were instrumental” or “that they participated to some degree” in the actual publication of the third-party defamatory comments posted on their Facebook pages.
The key question raised in these circumstances was whether by simply subscribing to and using a Facebook page that allows for third parties to publicly post their own comments results in participating and being instrumental in the publication of said comments.
The court found that each of the organisations was aware that an outcome of operating a Facebook page was that third-party comments by other users would be published. And further, it’s not uncommon for persons to be held liable for publishing defamatory remarks made by another.
According to the court, in accepting the terms of using a Facebook page, the media organisations had “accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments”.
The organisations “provided the vehicle for publication to those who availed themselves of it”, and the fact that they participated in the publication of the comments is not affected by their lack of ownership “of any part of the Facebook facility or service”.
The majority of the panel of justices further stated that the “potential liability” as a publisher arises not from a failure to prevent third parties from making harmful comments about another, but rather the responsibility lies in facilitating the publishing of the defamatory matter.
A final point
The last argument raised by the media organisations was that being Facebook users along with all others, they’re not participating in the communication of defamatory comments merely because another user of the social media service makes them.
While this may be so, the court found, the media outlets were not just operating on Facebook in the same way most other users are, rather they’re operating their own pages and encouraging others to leave comments upon them.
And considering this to be the case, the NSWCA ruled that the initial judge had not made an error in finding the media organisations were responsible for the publication of the comments in question.
However, the court has still not made a ruling one on whether those comments were defamatory.
The orders of the day
These findings of the court were those made by Justice Anthony Meagher and Acting Justice Carolyn Simpson. The findings of Justice John Basten differed slightly, although he delivered the final orders.
On 5 June, his Honour ordered that the appeal be dismissed, and that the three media organisations pay Mr Voller’s court costs. And the two other justices agreed with the orders of Justice Basten.