Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102 (1 June 2020)
Unsuccessful appeal by the media organisations which, at first instance, 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). The first instance judgment of Rothman J is reported here .
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.
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.
Seven West Media Ltd, Dailymail.com Australia Pty Ltd, and Bauer Media Pty Ltd, sought leave to appear as amici curiae in the proceedings. They raised an issue as to the limitations on the liability of internet hosts under Schedule 5, Clause 91 of the Broadcasting Services Act 1992 (Cth) which provides, relevantly:
1) A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or
(b) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host;
Meagher JA and Simpson AJA refused leave to intervene. Their Honours considered there was no purpose or utility in granting the other parties leave to intervene or to be heard on a question that was not raised in the appeal, and is not presently an issue in the underlying proceedings or one which could have any bearing on the outcome of the applications before the court. Rather, the issue of whether the Broadcasting Services Act 1992 (Cth) applies does not arise on the separate question going to publication, and should be resolved on a full factual basis after the filing of defences.
Basten JA dissented on this aspect and considered the role of the interveners was properly that of amici and commented that the media organisations were internet content hosts. His Honour observed the requirement to host internet content “in Australia” should not be confined to the somewhat arbitrary physical location of the server on which data is stored, but is applicable where the host of the internet content undertook its hosting function within Australia and referred to Dow Jones & Co Inc v Gutnick HCA 56. Further, a publication on the internet can only give rise to liability under New South Wales law with respect to defamation if the publisher in Australia was aware of the nature of the particular content.
Basten JA concluded that the media organisations failed to demonstrate error in the primary judge’s finding that publication had occurred; although noted that this finding was made without reference to the Broadcasting Services Act 1992 (Cth) and with limited reference to the operation of the Defamation Act 2005 (NSW).
Meagher JA and Simpson AJA found that “by the terms of their arrangements with Facebook, and by their invitations to members of the public to comment on their news items, the applicants [media organisations] accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments. It was the applicants who provided the vehicle for publication to those who availed themselves of it. The character of the applicants’ conduct relied on as constituting participation in publication is not affected by the lack of attribution of “ownership” to them of any part of the Facebook facility or service. The applicants participated in the publication of the third party comments from the outset.” In the context of the publication issue, it was immaterial that, when their attention was drawn to the defamatory publications, they were promptly removed. “The concept of publication and the fact that more than one party may participate in the making of material available for comprehension by a third party has nothing to say about the imposition of a liability on a person for the deliberate or negligent conduct of another party. Each applicant’s potential liability as publisher arises not in any sense from a failure to take action to protect a class of persons from harm or to prevent a particular person from injuring any member of that class. Rather the effect of the principle confirmed in Trkulja v Google  HCA 25 is that a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees.” Their Honours noted “the applicants are not merely using a service provided by Facebook which is equally available to others for the purpose of publishing comments. The applicants subscribe for a specific Page and encourage and facilitate the making of comments by third parties which when posted on the Page are made available to Facebook users generally.”
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