Pearls and Irritations

An Australian defamation court case has made it a whole lot more risky for publishers — or anyone, for that matter — to allow third-party comments on their social media pages.

This month, Australia’s top court has given very wide scope to the defamation liability of people and entities which have websites carrying readers’ comments.

The full High Court has ruled that news organisations which have Facebook pages on which the public can make comments will be liable if those comments are defamatory.

Prudent people — including non-news organisations — who have websites on which the public can post comments might chose to close down the comments function, and perhaps delete past comments.

The particular case decided by the High Court involves Fairfax Media and Nationwide News, and former Northern Territory youth detainee Dylan Voller.

The media companies had argued that, to be liable, a company must know of the defamatory matter and intend to convey it. However, the court by majority (5:2) held that, by creating a public Facebook page and posting content to it, and permitting public comments to be posted, in defamation law the companies facilitated, encouraged and thereby assisted the publication of comments from third parties, and were therefore publishers of the third-party comments.

This was all the case despite the media companies not having complete power to block or hide comments.

In this article, I use the expression “media companies” because the defendants in the Voller case are three media companies. But there is nothing in the judgments of the majority of the court to suggest that the principles it establishes are confined to media companies, mainstream media or major players.

Those principles are likely to extend to any person or entity which has a website permitting comments to be posted.

Defamation is a tricky area of the law.

As some of the judges in Voller point out, it is an area of law where some key principles are expressed in words which have different meanings from their usual meanings. “Publish” is one of those. “Publication” is at the core of the law of defamation.

In defamation law, a document or statement is “published” even if it is sent only to a single third person. Likewise, while malice is often alleged against a publisher in defamation proceedings, to be liable it is not necessary for the defendant to have any intention to defame the plaintiff or otherwise to be legally at fault. The defendant can be liable even if they acted with reasonable care.

Voller is concerned with people and entities which have websites carrying readers’ comments.

Could the likes of Facebook and Google also be successfully sued? The answer seems to be, at least in Australia: “probably”.

In 2018, in Trkulja v Google LLC (the Google case) all five members of the High Court sitting on the case said that it was strongly arguable that Google had “published” allegedly defamatory results produced by its search engine.

The case involved a claim that Google searches carried the defamatory imputation that the plaintiff was a criminal figure because his name was thrown up by searches of such terms as “Melbourne underworld figure”.

The court accordingly overturned a lower court’s decision throwing out the claim.

The High Court said that the process of discovery in the case would likely show whether or not Google’s involvement amounted to intentional participation in the communication of the allegedly defamatory results to Google search engine users was sufficient to support a finding that Google “published” the allegedly defamatory results.

One of the dissenting judges in Voller (Steward J) quoted with apparent approval the following observation by a Victorian Supreme Court judge in the Google case — that internet search engines “operate precisely as intended by those who own them”.

Referring to the High Court’s decision in Google, Steward J went on to say:

“It has since been accepted by this court that Beach J’s observation is ‘strongly arguable’. This conclusion follows from the proximate causative link between the application of Google’s search engine and the resulting publication of defamatory content in the search results. In this way, it can be seen that Google Inc is an actual conveyor of such content. That publication of such material is a ‘direct consequence’ of the application of the search engine. Accordingly, participation of this kind, in the means of communicating defamatory material, cannot be characterised as passive in nature.”

It is clear from Voller and the Google case that Australian defamation law has taken some different turns from laws in the UK, Canada and New Zealand.

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