Defamation Down Under: Implications for Free Speech

Published on 10 October 2021 at 14:00

The High Court of Australia, in a recent decision, has held that media companies are liable for defamatory comments left on their public social media pages. This has prompted companies including CNN to delete their Facebook page in Australia.


In a five-two majority decision in ‘Fairfax v Voller’, the court rejected the argument made by the media company that they should not be liable for defamatory comments on their Facebook pages, because they did not intend for the material to be posted.


While the appellants in this case are the media companies, and the relevant posts occurred on a Facebook page, the effect of this judgment extends well beyond Facebook and the media. It  may apply to all people and organisations that maintain their own websites and social media pages, including non-media companies as well as non-profit organisations and government bodies. The decision may also involve not just comments on Facebook but any social media platform.


In summary, the decision makes a person or organisation opening a post on a social media to comments by third parties potentially liable for any defamatory statements in those comments.  This is the case even if they have no knowledge of the comments. For a company like Facebook which encourages public interaction from users, this could be problematic.


The decision stems from a defamation claim brought in the New South Wales Supreme Court by Dylan Voller against the defendant media companies over comments made by Facebook users on news stories posted to Facebook by the media companies. The Court ordered that the question of whether the media companies were in fact the “publishers” of the defamatory material should be determined as a separate question.


In the NSW Supreme Court and later in the Court of Appeal, it was held that the media companies who hosted the Facebook pages had published the third party comments and were therefore liable for defamation. The Court stated “the creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties”


The ramifications of this ruling are yet to be determined, but may potentially be wide-reaching and affect individuals and businesses alike. The decision will now force many companies in Australia, which is not as protective of free speech in comparison to countries like the US, to either delete social media accounts or turn off comments.


The discontent around this decision has reignited some of the debate around whether the social media companies themselves should be seen as publishers. Some argue that whilst social media companies portray themselves as just platforms, they nevertheless actively control the content on their websites and make editorial decisions by moderating and removing content. In essence this is just how a newspaper or online news source would behave. In other words, they are acting as publishers.


Currently in the United States, social media companies are protected by Section 230 of the Communications Decency Act. They cannot be sued, for example, if any slanderous content appears on their platforms. This is the case in practically all jurisdictions, and thus many in Australia argue that if users with public pages can be liable for third party comments that they had no knowledge of, this should be extended to the platforms which host the content.

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