In the recent Supreme Court of NSW case Voller (Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766), the court held that operators of public Facebook pages are deemed to be ‘publishers’, and thus may potentially be liable for defamatory comments made by third-party users.
This decision appears to extend liability to businesses for defamation despite the fact they are not the authors of the comments concerned. Rather if a business has demonstrated involvement in encouraging or promoting the publication of comments this may be enough to make the business liable as a ‘publisher’ to a person defamed by those comments.
The case concerned three defendants each of whom are media organisations and in the business of disseminating material to the public by electronic means, including via public Facebook pages which invite contributions from members of the public. It is alleged that some of those contributions were defamatory.
The question before the court was “Whether the plaintiff had 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 that are alleged to be defamatory?” Which was ultimately answered in the affirmative.
The court stated that it is the publication of the material, not its composition, which is the actionable wrong. In relation to a public Facebook page a comment compiled or authorised by the third-party user is not published until the owner of the public Facebook page allows persons to read it. In this case each defendant acted not merely as a conduit of the comment. Rather, they provided the forum for its publication and encouraged the publication of comments for their own commercial purposes. It was the comment’s presence on the public Facebook page, which allowed third-party users to gain access.
In order to prevent liability for defamation the owner/administrator of a public Facebook page is able to render all or substantially all comments hidden. Thus, the extended publication of the comment is wholly in the hands of the media companies as operators/owners of their public Facebook pages.
In conclusion, the Court was satisfied, that the defendant media companies were the first or primary ‘publishers’, in relation to the general readership of the Facebook pages they operate. By opening and continuing to operate public Facebook pages for their own commercial ends, the defendants assumed the risk that comments made on that page will render them liable for defamation. Such risk may be addressed by initialing hiding all comments and un-hiding such comments once accessed.
Although the Voller case concerned public pages maintained by media companies, the decision creates potential liability for anyone using Facebook/social media forums for a commercial purpose, this could include strata managers using forums to communicate with lot owners. Thus, this case should serve as a caution against posting items that will likely spark heated ‘discussion’ or comments amongst readers and not reviewing the comments on those posts. In fact, strata managers should consider enabling the requirement on the media/social media platform used to authorise all comments before they become public.