By Paul Gregoire and Ugur Nedim
Dylan Voller came to national attention after footage of the abuse he suffered at the hands of youth justice officers at Darwin’s Don Dale Youth Justice Detention Centre were aired by the ABC in mid-2016.
The public outcry in relation to the abusive practices being meted out upon children at the notorious facility led to the establishment of the Royal Commission into youth detention in the Northern Territory, as well as widespread scrutiny in the media.
News outlets Fairfax Media, Nationwide News and Australian News Channel posted articles about Voller on their Facebook pages over December 2016 to February 2017, which led to third parties making allegedly defamatory remarks about the First Nations man.
Voller moved to sue the three above-mentioned media outlets for defamation.
But before he could, it was determined that the NSW Supreme Court had to establish whether “the publication element of the cause of action of defamation against the defendant in respect of” third-party user comments was established.
Justice Stephen Rothman found in June 2019 that the publication element was confirmed. The NSW Court of Appeal upheld this decision against a challenge from the media organisations last year. And now the majority of the highest court in the land has also ruled in Voller’s favour.
The element of publication
Handing down its decision on 8 September, the majority of the High Court of Australia ruled that publishers are responsible for defamatory comments left on their Facebook pages: a decision that has implications for all social media sites and comment sections in general.
In their reasons, Chief Justice Susan Kiefel and Justices Patrick Keane and Jacqueline Gleeson looked to the laws governing defamation in NSW contained in the Defamation Act 2005 (NSW) (the Act), noting that within the legislation there is no definition of “publication”.
Section 32 of the Act carries the defence of innocent dissemination. Developed in common law, it permits a defence based on a lack of knowledge about defamatory content. The media organisations relied on common law precedents utilising this defence on appeal.
The media groups argued that they didn’t make the defamatory comments available to the public and nor did they participate in their publication, therefore, they weren’t in “any relevant sense instrumental in their publication”, rather they “merely administered a public Facebook page”.
However, the appeals court found that the organisations had facilitated the making of comments by third parties which were to become available to others. And as they’d encouraged comments upon a vehicle for publication that they’d provided, the element of publication had been established.
In the High Court, the media organisations shifted their argument stating that for the publication element in the relevant question to be established, there must be an intent on the part of the publisher, as “publication is dissemination with an element of intention”.
The question of intent
“In the law of defamation, harm is understood to be occasioned to a person’s reputation when a defamatory publication is made to a third party. Publication is the actionable wrong,” their Honours explained.
“Publication may therefore be understood as the process by which a defamatory statement or imputation is conveyed.”
The High Court justices then outlined that defamation is a tort – a wrongful act – of strict liability, meaning that a publisher may still be liable if they did not intend to defame another person and took reasonable care not to allow this to happen.
On consulting the authorities, it was found that intention to defame is not a key element in such cases.
Further, publication infers any voluntary act of participation that contributes to the communication of material to a third party, which is then sufficient to establish a defendant as a publisher.
Their Honours then cited the 1928 High Court decision in Webb versus Bloch, which found that publication may involve “acts of participation other than, and which may precede, the actual physical distribution of the defamatory material”.
The defence of innocent dissemination was established early last century and was determined to hold in terms of entities, such as libraries, news vendors and messengers, who played a subordinate role in circulating defamatory material.
The media organisations in the current case raised the precedent set in the 1934 High Court case Lee versus Wilson and Mackinnon, which established that booksellers and vendors who were unaware of defamatory statements in materials weren’t publishers.
However, their Honours set out that this defence does not then negate the act of publication, but rather it absolves liability from a defendant who would otherwise be considered a publisher of the material in question.
A different set of circumstances
The 1937 UK case Byrne versus Deane was also raised by the media groups. This case established that a property owner may be liable for a defamatory statement affixed to their premises if they have become aware of it and do nothing to remove it.
The case involved an alleged defamatory verse affixed to the wall of a golf club. The club had a rule that the secretary must approve messages displayed on its wall. And although the verse was found not to be defamatory, the majority did determine that the club directors could have been liable.
“By electing to leave the alleged libel on the wall of the club, having had the power to remove it, they were taken to have consented to its continued publication to each member who saw it,” the High Court of Australia justices explained.
Their Honours then dismissed the points established in Byrne versus Deane as it involved “very different circumstances” to the Voller case, as it regards an occupier whose conduct came into question once made aware of a publication on their building.
And further, the case in no way established any divergence from the “general rule of publication to a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher”.
On 8 September, the High Court justices found the NSW Court of Appeal was correct in determining that the media organisations in having facilitated, encouraged and assisted the posting of comments by the third parties on their Facebook pages rendered them publishers of those comments.
Justices Stephen Gageler and Michelle Gordon came to the same conclusion via different reasoning, while Justices James Edelman and Simon Steward dissented.
Dylan Voller is now able go ahead with his defamation cases, while Australian media organisations are now scrambling to understand the implications moving forward.