Facebook public page posters beware

The Supreme Court of New South Wales this week handed down its judgment in Voller v Nationwide News Pty Ltd & Ors¹, a potentially significant decision for parties using public Facebook and other social media pages to share content.

In Voller, the Court confirmed that parties with public Facebook pages can be held liable as primary publishers of defamatory content made by third-party posters, including in circumstances where the party has not been requested to remove the content, or indeed put on notice of the allegedly defamatory content.

With parties increasingly relying on Facebook for commercial purposes, including consumer engagement and advertising, the Voller decision has the potential (at least in the short-term) to increase their risk of liability in relation to third-party defamatory content.

In this article, we briefly discuss the Voller decision and provide some practical tips to help reduce the risk of being liable for third party comments on your Facebook page.

The Facts

Dylan Voller, a former Northern Territory youth detainee, commenced defamation proceedings in the Supreme Court of New South Wales against three media outlets in Nationwide News, Fairfax Media Publications Pty Ltd and Australian News Channel (Media Companies) alleging that the Media Companies were liable for third party comments on their respective public Facebook pages.

The proceedings were commenced in circumstances where:

• each of the Media Companies used Facebook as a channel for broadcasting “links” to news stories relating to Voller;
• there was no suggestion that the news stories or “links” were defamatory of Voller;
• Voller’s concerns related to posts by third party Facebook users on the “links” shared by the Media Companies; and
• Voller had not asked the Media Companies to delete the third-party comments, or indeed, alerted the Media Companies about the allegedly defamatory comments prior to commencing the proceedings.

The Decision

Justice Rothman was relevantly required to consider whether Voller had established the publication element of the cause of action of defamation against the Media Companies in respect of each of the Facebook comments by third-party users. That is, whether the Media Companies were primary publishers of the third party content.

Ultimately, His Honour concluded that each of the Media Companies was a primary publisher of the third-party comments shared on its “links”.

In reaching this conclusion, Justice Rothman considered amongst other things, the purpose of the operations and objectives of the Media Companies, noting that the Media Companies were "in the business of disseminating material to the public by electronic or other means, or both." and that rather than being used to disseminate news, the Facebook pages were used to "... excite comments and interest from and by the public"² for purposes associated with the success of the company and its media publications.³ His Honour went further, noting "the operation by the defendant, in each of the proceedings, of their public Facebook page has little to do with freedom of speech or the exchange of ideas."⁴

His Honour otherwise considered the degree of control by the Media Organisations on content on their public Facebook pages. Highlighting in particular that each Media Organisation “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.”⁵

The Implications & some practical tips

The Voller decision will no doubt spark debate in relation to the ongoing suitability of the uniform defamation law, particularly in light of this decision’s impact on “free speech” and the long-standing view that individuals should be held responsible for content they publish.

As matters currently stand, parties using a public Facebook page should be mindful that comments by third-party users made on their page can potentially create exposure to defamation proceedings.

In light of the Voller decision, parties should be mindful of the following:

• It is arguably not enough to ensure your posts are not defamatory, you should also consider the response the post is likely to elicit.
• If you know the post is likely to be controversial because it relates to sensitive topics, or emotive issues likely to generate strong responses from both sides of a debate, consider if you should post the material on your Facebook page at all, or whether another forum such as your own website is more appropriate.
• If you do allow comments on your page consider using Facebook’s (or the platform you use) tools to vet third-party comments or posts before they are published, and monitoring the posts carefully.
• Be aware that you can block users and hide posts and don’t be afraid to do so.

If you are asked to remove allegedly defamatory content, do so sooner rather than later and consider seeking legal advice.