Recently, the issue of whether media companies were the ‘publishers’ of comments made by third-party Facebook users on their Facebook pages was determined.
On 8 September 2021, the High Court (by a 5:2 majority), held to a traditional interpretation of “publication” under defamation laws and rejected an argument made by media company appellants that they should not be liable for defamatory posts on Facebook pages that they controlled, because they did not intend that the material be posted (Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27 https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27 )
The effect of this judgment extends well beyond Facebook and the media, and will apply to:
- all people and organisations that maintain their own websites and social media pages, including non-media companies, not for profits and government bodies; and
- all websites and social media pages, not just Facebook.
This decision emphasises the risks in facilitating and encouraging the posting of comments by third-party users on webpages that a person or organisation controls. Such facilitation could be enough to establish that the relevant person or organisation is a “publisher” for the purposes of defamation law.
The decision confirms that an organisation or person opening a site or post to comments by others (third parties) may be liable for any defamation in the comments facility that the third parties then make.
In view of that decision, anyone hosting Facebook pages or similar websites, need to carefully consider their future strategies. Some suggested considerations sent to us are below ; however, these do not constitute legal advice, and it is each individual or business’s responsibility to seek legal advice where necessary.
- Before posting, consider the content of your post carefully and avoid publishing content that could be seen as inviting defamatory comments.
- Disable comments on Facebook pages etc, where it is not possible to monitor 24/7
- Employ Facebook programming tools in order to “hide” comments by third party users so that they can be monitored and approved before being visible to the general public.
- Consider the use of word blockers or a ‘profanity filter’.
As you know I have always encouraged vibrant discussions and free speech via respectful conversations on our Facebook and website posts and am thankful for those who have supported these efforts. However, given this court ruling, and our inability to monitor our page 24/7, there may be times that we have to disable comments or hide/delete comments that may defame others or incite to do so. This does not in any way diminish our hearing your voice, as it just takes a call to 53193100 or emailing my office on email@example.com for any concerns.