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Trademark Lawyer Sydney – NSW Supreme Court-Voller

Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

The defendants were media organisations which maintained public Facebook pages and were found to have relevantly published potentially defamatory postings made by members of the public under the Defamation Act 2005 (NSW).

The evidence before the court was that media organisations use Facebook as a channel for broadcasting news stories, or providing links to these stories on their own websites. The public is then invited to comment on these publications either on the Facebook page or the media organisation’s website. Administrators of public Facebook pages are notified of comments and have the ability to hide or delete comments. The publisher of a public Facebook page, which allows comments, has an option of ensuring that every comment is hidden, until monitored and approved by an Administrator. This gives rise to a significant distinction between the publication of comments on a public Facebook page and the production or indexing of  search results, for example, by Google which is better classified as a secondary participant ( although Google and other search engine providers are in the position of a primary publisher of their own summary  material).

Rothman J referred to Dow Jones & Co Inc v Gutnick [2002] HCA 56 and noted it is the publication of the material in comprehensible form in a location where there exists persons with whom the plaintiff has a reputation that occasions an actionable defamation. When this principle is applied to a public Facebook page, it is not the compiler of a comment that publishes as a result of her or his authorship. It is the publisher of a comment in a comprehensible form or legible form that publishes the comment. The difficulty arises as a result of the circumstance that the third-party commentator, who has compiled the comment, publishes it by loading it onto the public Facebook page, which is comprehensible because the media company has rendered it relevantly public. Hence, where an author of a comment, which is defamatory, posts that comment on a public Facebook page, publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page. The extended publication of the comment is wholly in the hands of the media company that owns the public Facebook page.

His Honour concluded that, at paragraphs 203 -205, “the operation of a public Facebook page is fundamentally different from the operation of a website and, relevantly, different from the operation of an individual Facebook page. In the case of a “public” website onto which third-party users make comments, there is no capacity, at least on the facts stated in other judgments, for the administrator or owner of the public website to block or hide comments made on the website, except after the fact. Thus, in a public website, there is no capacity, physical or otherwise, to vet comments or to prevent them from being published to the world. On the other hand, on an individual Facebook page, there is a capacity to ensure, by use of privacy settings, that only Facebook friends can add to the timeline or comments, but not to block all comments to any posting. A public Facebook page is, on the foregoing basis, unique. It allows the publication of the Facebook page and comments by the Administrator, but allows the Administrator to forbid all comments by others.”

Here, the defendant media organisations administer their public Facebook pages and 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, if necessary preventing its publication before its publication to the general readership. The defendants 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 consequence of being a primary publisher, the defence of innocent dissemination does not arise.

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