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Food for thought, Privacy Law

Are businesses treading in a legal minefield when it comes to public Facebook pages that invite or encourage commentary?

The potential catastrophe that may await businesses following the Voller case.

At one point in time, shortly before social media use increased significantly in Australia, defamation barristers were left to wonder whether they were in the right line of legal work as the cases they were dealing with dried up.

They need not have worried.

Since the increase in use of social media, particularly Facebook and Twitter, these barristers have been flat out representing plaintiff’s and defendant’s before the Supreme Court of New South Wales in defamation proceedings.

Although most of these cases have involved individuals pursuing other individuals or entities for publication of defamatory comments and statements on social media and elsewhere, such cases normally involve representations made by specific individuals, or employees such as journalists or where the business employer consents to such publications.

This is no longer just the case.

It now appears, following the decision in Voller v Nationwide News Pty Ltd (2019) NSWSC (Voller), that businesses can potentially be sued for defamation where the business, for example, invites stakeholders and third parties to make commentary about a particular matter or issue and therefore become publishers of the relevant commentary which is of a defamatory nature.

Stakeholders might recall the circumstances regarding the unfortunate case of Dylan Voller – an indigenous person who was the subject of an ABC Four Corners program which was looking into the harsh and inhumane conditions to which inmates were subject in a detention centre in the Northern Territory. Mr Voller was depicted being restraining in a chair in that centre.

Following the airing of that report there was a dissemination in newspapers and television stations and generally across the Australian media landscape about the case. Some of these companies posted stories about the Voller case onto their public Facebook pages and effectively provided a platform for stakeholders to make comments.

A number of the comments posted may well have been defamatory.

As an outcome, Mr Voller commenced proceedings for defamation, alleging that he had been defamed by comments posted on the public Facebook page by Facebook users in response to the stories.

The matter came before the Supreme Court of New South Wales recently where the court examined the initial issue of whether Mr Voller had established the publication element of the cause of action of defamation against the defendant, Nationwide News Pty Ltd.

Key points made by the Court included the following and I quote (redacting some of the statements):

The  operation of a Facebook page is fundamentally different from the operation of a website and, relevantly, different from the operation of an individual Facebook page. In the case of a “public” website onto which third-party users make comments, there is no capacity, at least on the facts stated in other judgments, for the administrator or owner of the public website to block or hide comments made on the website, except after the fact. Thus, in a public website, there is no capacity, physical or otherwise, to vet comments or to prevent them from being published to the world.

A public Facebook page is, on the foregoing basis, unique. It allows the publication of the Facebook page and comments by the Administrator, but allows the Administrator to forbid all comments by others. Further, by the use of a list of prohibited words that includes words that would be necessary to render any comment intelligible, such as all pronouns; the definite and indefinite articles; and all conjunctions and prepositions, the Administrator is able to hide all comments, pending the monitoring of such comments.

The media companies’ use of a public Facebook page is about their own commercial interests. As already indicated, the primary purpose of the operation of the public Facebook page is to optimise readership of the newspaper (whether hardcopy or digital) or broadcast and to optimise advertising revenue. The exchange of ideas on the public Facebook page is a mechanism (or one of the mechanisms) by which that is achieved.

Moreover, as the prior discussion on first principles explains, it is not the compiling of a comment that gives rise to damages in defamation; it is its publication.

Moreover, it is the comment’s presence on the public Facebook page, which allows all third-party users to gain access.

More importantly, the placement of the comment on the third-party user’s individual Facebook page is an automatic program-generated result of placing the comment on the public Facebook page. It seems, on the basis of the principles already described, that, in those circumstances, the comment on the third-party user’s individual Facebook page is in the same category as the results of the search engine, without a summary.

That is not to say that the third-party user would not be liable for the publication, only that the publication of the comment on the third-party user’s individual Facebook page would be a subsidiary, subordinate or secondary publication. Of course, that may make little difference, given that the third-party user will, axiomatically, know that the comment has been made and, therefore, the defense of innocent dissemination would not, ordinarily, be available.

Further, the Facebook friends of the third-party user, who comments, are able to read the comment by virtue of their status as such “Friends”; not by virtue of the status of the public Facebook page. If the media companies were unable to hide a comment from the commentator’s “friends”, then the media company, in that respect, would probably be a secondary or subordinate publisher, applying the tests in Duffy at [102], [103] and Oriental Press at [76].

It is unnecessary and inappropriate for the Court, as presently constituted, to re-frame or lay down any general principle. The Court is applying the principles already adumbrated.

Here, on the evidence before the Court, each defendant had the means effectively to delay the publication of the third-party comments and to monitor whether any were defamatory, before releasing them to the general readership.

Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.

In conclusion, the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates. As a consequence of that classification, the defence of innocent dissemination would not arise. That latter aspect is not, strictly, necessary to answer the question that has been posed.

A defendant cannot escape the likely consequences of its action by turning a blind eye to it. Where a defendant’s assessment of the consequences of allowing comment, if performed, would have been that defamatory material will be published and, if that defendant is a subordinate publisher, the defendant is promoting, ratifying and consenting to the publication of the defamatory material, even though its precise terms may not be known. The defendant, in that situation, is on notice: see Duffy at [146].

Lastly, in that respect, I note that the defendant media company has opened and continues to operate a public Facebook page for its own commercial ends. In doing so, it assumes the risks that comments made on that page will render it liable under various laws that may prevent, render unlawful, or render actionable in damages various statements: 

Given that the comments about which complaint is made in these proceedings are comments on an initial post that was more likely than not to give rise to defamatory comments, there seems to be no public policy reason why liability should not be sheeted home to the media company that is the defendant in each of the proceedings, at least, if it be a subordinate publisher, for its general readership (i.e. excluding the Facebook friends of the commentator).

The Court made the following orders:

  • The Court answers the following question in the following manner:

“Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?”

Answer: Yes

  • The defendant in each proceeding shall jointly and severally pay the plaintiff’s costs of and incidental to the hearing of the separate question.
  • Leave is reserved to the parties to make application within seven (7) days for any special or different order as to costs.

Accordingly, all stakeholders including business clients are on notice. Where any business uses Facebook or other social media platforms for commercial purposes and where there is an opportunity for an invitation for members of the public to comment on or respond to a particular article, there is the potential for those business owners to be liable as publishers of defamatory material.

You have all been warned.

If this article is of importance to you or there are concerns about the way your business uses or operates social media then you may wish to contact us to seek advice.

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