On 8 September 2021, the High Court of Australia made an historic decision. It decided that certain media organisations were ‘publishers’ and potentially liable for defamations by users of their public Facebook pages.
If you operate on social media, like Facebook, or on any digital platform, whether for business, not for profit, or for just personal reasons, and your account is accessible to the public, the High Court’s decision will alarm you.
The High Court case involved media organisations which each maintained a public Facebook page. On their page, content was shared with public Facebook users. Readers of the content (mostly news articles posted to the page) could ‘like’, ‘comment’ or ‘share’ posts on the page, being typical tools to engage with the content. Comments made by users appeared on the page, accessible to all Facebook users who could see the page.
Dylan Voller sued the media organisations for defamation on the ground they had ‘published’ defamatory content on their pages; content comprising comments made by users with respect to news items posted about Mr Voller.
Throughout Australia, the tort of defamation is committed merely on publication of defamatory matter of any kind. Under the uniform defamation legislation in Australia, ‘matter’ includes anything communicated by means of the Internet or any other form of electronic communication. A defamed person is compensated by an award of damages for harm to his or her reputation. There is no requirement to prove that the publisher intended to harm the person’s reputation or that any harm to reputation was caused negligently; defamation is a legal wrong of ‘strict liability’.
In the High Court, the media organisations argued that they were not ‘publishers’ and therefore could not be held legally responsible for any defamation of Mr Voller. They argued they did not make the defamatory comments (the users of their Facebook pages did so), did not participate in the publication of those comments (because they did not personally make or authorise them and did not intend to convey any defamation of Mr Voller) and merely administered a public Facebook page on which third parties published material (they were passive and unwitting victims of Facebook’s functionality).
The important legal issue for the High Court’s decision was whether the media organisations ‘published’ the comments on their Facebook pages that were made by users. Significantly, the High Court held they were publishers because the organisations invited and facilitated comments on their public Facebook pages. As a consequence, they were liable for any comments by users about Mr Voller that were defamatory.
Three of the Hight Court Justices expressed the principle this way: a person was a publisher of defamatory matter if ‘by an act of any description’ the person ‘intentionally assisted in the process’ of communicating the defamatory matter to someone else, regardless of whether the person knew that the matter contained defamatory content.
If you operate a public social media account to enjoy the benefits of engaging digitally with millions of active social media users, what can you do to protect against the serious downside risk of potential liability for defamatory comment posted on your page?
- Close the page. This is what the American media organisation CNN has precisely done following the High Court’s decision. If closure is not feasible, options 2-4 below should be considered.
- Administer, monitor and edit the page and immediately delete or mask potential defamatory posts. This is a 24/7 task.
- Perhaps the best option of all – Obtain insurance cover that will respond to, and grant indemnity against, defamation claims and judgments, as well as to cover your legal defence costs.
There is gathering political will worldwide to hold the tech giants’ legally accountable for defamatory material published on their platforms. In Australia, legislation to deem Facebook and other big tech companies as a ‘publisher’ is on the table, as well as legislation to force these companies to identify the cowards who used anonymity to destroy people’s reputation. The High Court’s decision is next level down, focusing on Australians who use a digital platform like Facebook to operate a page and engage with internet and social media users. The law is now clear: you are in the firing line under Australian law if you operate a public social media page and a user posts a defamatory comment about someone, even if you were unaware of it.
13 October 2021
© Michael Mackinnon, Solicitor & Independent Counsel