But I didn't make those comments! It's not my fault..is it?

Are you thinking of sharing a controversial post on your Facebook or Instagram? Might want to think twice before you do…

The High Court has released a landmark decision which confirms the common law position of publishing defamatory material and will be a worry for many social media companies.

As discussed in our previous article on ‘keyboard warriors’, linked here, comments, reviews, and statements published online which are negative can be defamatory and land you in hot water.

The decision of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (“Voller”) has now clarified the operation of defamation laws within Australia to expand the definition of ‘publishing’ defamatory material to the social media sites that allow posts and comments from their users.

The circumstances of Voller arose after a Facebook news publication identified Dylan Voller as a detainee in an Alice Springs Correctional centre, and various defamatory comments were published by social media users on pages operated by the applicants. Voller sued the media companies in the NSW Supreme Court for publishing the defamatory material and was successful. The media companies appealed this decision to the NSW Court of Appeal, who found that the social media companies had essentially “invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might avail themselves”, and again found against the media companies. The media companies then appealed again to the High Court of Australia.

The Decision in Voller

The High Court found, in a 5-2 majority, that the media companies, by allowing defamatory comments on a published Facebook post, were found to have published defamatory material.

The media companies sought to liken the comments from Facebook users as defamatory markings or graffiti on the side of a wall of a building, in that while the comments were published on their premises (or Facebook pages) they had no responsibility or control for the comments, and to have published the comments, they must have provided a consent to or approval of the comments.

This argument was found to be of no assistance in the circumstance, particularly as the Court of Appeal had found that there were avenues for the news companies to place restrictions on the comments of the posts but opted not to use this software.

The decision of the High Court in Voller now makes entities which provide a platform for defamatory comments to be found liable for publication of defamatory material by their users. By allowing users to comment and post on news articles, the media companies had invited the comments from their users and could be held responsible for publishing the comments.

Changes can already be seen from the decisions, with many Facebook pages for news companies closing comments on their post to prevent defamatory or unlawful user contributions.

While the decision in Voller focused on media companies, it has potentially wide-reaching implications for both social media companies, and other companies that operate webpages which allow comments from users or third parties. It may also apply to comments on social media made by private users – so next time you go to make a provocative comment on a hot topic on Facebook, ask yourself – is it worth it?

The content of this article is intended to provide a general guide to the subject matter.  Advice should be sought about your specific circumstances.


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