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Trademark Lawyer Sydney – High Court Appeal – Voller

Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021)

The High Court, by a 5:2 majority, dismissed an appeal by the media companies from a judgement of the Supreme Court of New South Wales where they were found to have relevantly published on their public Facebook pages potentially defamatory postings made by members of the public under the Defamation Act 2005 (NSW).

This judgement was confined to the issue of publication and the Supreme Court will now need to consider the substantive issues concerning defamation, defences and liability.

This judgement potentially has broader implications for all businesses which use social media and/or websites to encourage and facilitate engagement by third parties because they can be considered publishers of comments posted on their sites by those other parties. Businesses will need to reconsider how they manage their social media engagement including turning off or restricting third party posts, moderating posts before they are published, or monitoring published posts and taking appropriate action to promptly remove potentially defamatory content. However, depending upon the facts, defences such as innocent dissemination may be available. Further, the stage 1 review of model defamation proceedings recently resulted in changes (which have been enacted in NSW) including the requirement for serious harm and clarification of the concerns notice procedure under which publishers may offer to make amends (for example by removing the publication) before proceedings can be commenced. The stage 2 review of model defamation proceedings is currently underway and this includes the question of internet intermediary liability in defamation for the publication of third-party content.

Primary Judge

The primary judge, Rothman J, found that the relevant media organisations are each primary publishers because they use their public Facebook pages for their own commercial interests and adopt settings which enable the public generally to see comments in comprehensible form posted by other parties. They have 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. They provide the forum for publication of comments and encourage, for their own commercial purposes, the publication of comments. They were in the position where they know or can be expected easily to find out the content of the articles being published and are able to control that content. The media organisations cannot escape the likely consequences of their action by turning a blind eye to it. There is no public policy reason why liability should not be sheeted home to the media company defendants. Further, as a primary publisher, the defence of innocent dissemination does not arise.

Court of Appeal

The publication issue proceeded as a separate question to be determined and was confined to whether, for the purposes of defamation law, the media organisations published the relevant third party comments. Whether those comments were defamatory and the availability of defences were separate issues.

The Appeal Court dismissed an appeal by the media companies. Basten JA, Meagher JA and Simpson AJA unanimously held that a person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees. The media organisations maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the pages were made available to Facebook users generally and were therefore publishers of those comments.

However, since the question was confined to the issue of publication, the Court of Appeal held the primary judge was in error in also finding that the media organisations were primary publishers and could not rely on the defence of innocent dissemination. It was unnecessary for the court to resolve whether it was possible for the media organisations to hide all comments on their public Facebook pages.

A majority of the Court (Meagher JA and Simpson AJA) refused leave for Seven West Media Ltd, Australia Pty Ltd, and Bauer Media Pty Ltd, to appear as amici curiae in the proceedings.

High Court

The media companies were liable as publishers of potentially defamatory comments by third parties posted on their Facebook social media pages.

Kiefel CJ, Keane and Gleeson JJ rejected the contention by the media companies that publication requires an intention to communicate the relevant matter.

Their Honours noted that “an action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. The intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.

The liability of a person as a publisher depends upon mere communication of the defamatory matter to a third person. The knowledge or intention of the publisher does not arise. The publication rule has a very wide operation and any act of participating in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher. All that is required is a voluntary act of participation in its communication.

The common law defence of innocent dissemination was developed by the courts to mitigate the harshness of the law relating to publication. It was available to subordinate publishers and distributors, but not to primary publishers. Where established, a defendant who would otherwise have been liable as a publisher is excepted from liability. It does not mean that publication is to be taken as not having occurred.

Their Honours concluded the Court of Appeal was correct to hold that the acts of the media companies in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

Gageler and Gordon JJ agreed with Kiefel CJ, Keane and Gleeson JJ that the Court of Appeal properly concluded that the primary judge was correct in finding the appellant media companies were the publishers at common law of third-party comments posted on their public Facebook pages.

Publication for the purpose of the tort of defamation has been emphasised in Australia to be a bilateral act where the publisher makes matter available and a third party has that matter available for comprehension. Publication of matter by means of the Internet is complete when and where the matter is accessed by a third party in a comprehensible form. It is a long-standing rule of the common law that every intentional participant in a process directed to making matter available for comprehension by a third party is a “publisher” of the matter upon the matter becoming available to be comprehended by the third party. The reference to “intentional” is understood as being directed at an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter.

The doctrine of innocent dissemination is a defence to a cause of action in defamation, not a denial of the element of publication.

The cases relied upon by the media companies did not support their contention that intention to publish defamatory matter is required for a person to be a publisher.

Their Honours concluded:

…each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. 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 appellants were thereby publishers of the third-party comments.

Steward J gave the leading dissenting judgement and considered the issue under determination proceeded under the incorrection assumption that the appellant media companies were the publisher on their respective Facebook pages of either all third-party comments or none of them.

His Honour agreed with Kiefel CJ, Keane and Gleeson JJ in rejecting the contention by the media companies that publication requires an intention to communicate the relevant matter. However, whether the appellants published the relevant third party comments turns on the particular facts.

His Honour noted that case law suggests that concepts of passivity, control and prior knowledge of defamatory content may be relevant to a factual determination as to whether a person has participated in the publication of a third party’s defamatory post or comment on Facebook.

The appellants facilitated the publication of the third‑party comments by creating their own Facebook pages and by making their own posts.  His Honour considered that neither of these steps, whether considered separately or cumulatively, made the appellants publishers of all third‑party comments made on their respective Facebook pages. Merely allowing third‑party access to a Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all the third‑party comments posted thereafter; although different considerations arise in relation to Facebook posts that are likely to provoke or procure adverse third‑party comments. The primary judge found that only certain posts were potentially of this kind and exhibited a sufficient connection with third party comments to justify a finding that the appellants had procured, provoked or conduced their making and that each was thus a publisher of them.

Edelman J also gave a dissenting judgement and agreed with Steward J that “the parties to these appeals erred in their assumption that the appellants either were publishers of all third‑party comments on their respective Facebook pages or were not publishers of any of them”.

Although defamation is a tort of strict liability, there must be a manifested intention to make a communication to a third party. The element of an intention to publish that is required is concerned with an intention to act, rather than with any of the consequences of the act.

His Honour considered that, while innocent dissemination can now be seen as a true defence, rather than a negation of the element of publication, a defendant cannot be liable for publication unless they intentionally perform the act of publication or assist another in the act of publication with a common intention to publish. That will depend upon the circumstances of the particular case. Here, “the appellants assisted in the publication of third‑party comments by creating their Facebook pages and posting news stories upon which third‑party users could comment. However, by merely creating a page and posting a story with an invitation to comment on the story (an invitation which the appellants could not then disable), the appellants did not manifest any intention, nor any common purpose with the author of the comment, to publish words that are entirely unrelated to the posted story. Such unrelated words would not be in pursuance of, or in response to, the invitation.”

Consequently, his Honour would have allowed the appeals in part and considered the relevant issue to establish publication is whether the relevant Facebook comment has a connection to the posted subject matter that is more than remote or tenuous.

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