This post is about the defamation case of Fairfax Media Publications Pty Ltd v Voller  HCA 27 (8 September 2021). The issue was whether Fairfax was a publisher of comments made by third parties on its Facebook page for the purposes of defamation proceedings.
In essence the decision confirms that an organisation or person opening a site or post to comments by others may be liable for any defamation in the comments others then make. Larger organisations may be able to track, vet and remove problematic posts quickly, but for individuals and organisations without continuous site monitoring, their risk from third party posts might be more difficult to control or mitigate.
It should be noted that the case states the law as applicable in Australia. The New Zealand Courts have taken a different path. However, if the publication has taken place in Australia (under the holding in Dow Jones v Gutnick) an offshore organization or person operating a site where third party comments are posted could be subject to the jurisdiction of the Australian Courts.
Fairfax Publications, in addition to publishing newspapers, maintained a public Facebook page to which they posted news contents and maintained hyperlinks to other material on their site. They invited comment from members of the public who were Facebook users.
The respondent claimed that following the appellants posting about particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.
The question was whether the respondent, the plaintiff in the proceedings, had established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users. The appellants took the view that a negative answer to the separate question would result in dismissal of the proceedings.
There was evidence before the primary judge, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked.
Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to “hide” most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook “friends”.
Hidden comments could then be individually assessed by an administrator. If sufficient staff were allocated to perform this task, comments could be monitored and “un-hidden” if approved by an administrator.
The Court observed that the number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and thus, the revenue from advertising on both the page and the digital newspaper or broadcast.
The argument for the appellants was that to be publishers they had to be instrumental to or a participant in the communication of the alleged defamatory matter. They argued that they did not make the defamatory comments available to the public, did not participate in their publication and merely administered the Facebook page on which third parties published material. In this way they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.
They also argued that they were akin to the owner of premises upon which defamatory material had been posted or written – graffiti was given as an example – and in cases of this kind there had to be knowledge – an awareness – of the statements and allowing them to remain in place.
However, it was observed that in the Hong Kong case of Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 it had been held that internet platform providers which hosted a discussion forum were in a different position from the occupiers referred to in those cases. Unlike the occupiers, the providers had encouraged and facilitated postings by members of the forum and were therefore held to be participants in their publication from the outset.
Before the High Court it was argued for the appellants that the common law requires that the publication of defamatory matter be intentional. It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words. This, it was argued, followed from the decisions of Webb v Bloch (1928) 41 CLR 331 at 363-4 and from Trkulja v Google LLC (2018) 263 CLR 149 at 163 .
The High Court rejected the suggestion that a deliberate act of allowing defamatory material to remain was good law. Following the rationale in Dow Jones v Gutnick (2002) 210 CLR 575 at 600  it held that publication may therefore be understood as the process by which a defamatory statement or imputation is conveyed. A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it. It depends on mere communication of the defamatory matter to a third person. As was held in Lee v Wilson & McKinnon (1934) 51 CLR 276 no question as to the knowledge or intention of the publisher arises.
The High Court revisited Trkulja and confirmed that the correct meaning of publication is that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher. A person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.
The time of participation in publication is critical. The High Court considered the line of cases commencing with Byrne v Deane  1 KB 818 which concerned the placing of an alleged defamatory verse on the wall of a golf club. The rules of the club required the consent of the Secretary to the posting of any notice in the club premises. The Court in that case noted that publication was a question of fact, depending on the circumstances of each case. Cases were referred to where persons who had taken no overt part in the publication of defamatory matter nevertheless adopted and promoted its reading so as to render themselves liable for its publication.
In Bryne v Deane there was evidence which tended to show that the actions of both defendants, as directors of the golf club, fell into this latter category. By electing to leave the alleged libel on the wall of the club, having had the power to remove it, they were taken to have consented to its continued publication to each member who saw it.
The High Court concluded that such cases do not establish a different rule for publication based on the intention of the occupiers. These cases involve the application of the general rule of publication to a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher.
The time when the occupier becomes aware of the publication of the material marks the point from which the occupier’s conduct or inaction is assessed to determine whether they can be said to have participated in the continuing publication. Cases of this kind – such as Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 (internet platform providers) and Murray v Wishart  3 NZLR 722 (hosts of a Facebook page) – are not useful to explain the involvement of others in publications in very different circumstances and were held not to be of assistance in this case.
It should be observed that the High Court decision was a majority one. Three judges (Kiefel CJ, Keane and Gleeson JJ)concurred in one set of reasons.
Two judges (Gageler and Gordon JJ) wrote a separate opinion. That opinion extensively reviewed many of the overseas authorities on the issue of publication.
The Judges stated
“Murray v Wishart was a decision in which the New Zealand Court of Appeal held that an individual Internet user who was the administrator of a private Facebook page and who had no “actual knowledge” of the contents of third-party comments posted on the page was not liable in defamation. The Court of Appeal proceeded without reference to Webb v Bloch, and indeed without analysis of what constitutes publication at common law. Rather, the starting point for its analysis was that the issue of publication was to be determined by “strained analogy” with previously decided cases. It appeared to assume that either actual or constructive knowledge of the defamatory content was necessary for publication. Its ultimate conclusion that “the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher” was reached having regard to the guarantee of freedom of expression in the New Zealand Bill of Rights Act 1990 (NZ). The reasoning does not reflect the common law of Australia.”
They also noted the decision of Oriental Press Group Ltd v Fevaworks Solutions Ltd, where the issue was not as to publication but as to whether the common law defence of innocent dissemination was available to the respondents, who administered a website which hosted an Internet discussion forum on which users posted defamatory matter. Before turning to resolve that issue, Ribeiro PJ said of the respondents:
“They were certainly publishers of those postings (and do not seek to argue otherwise) since they provided the platform for their dissemination, but the respondents were not aware of their content and realistically, in a many-to-many context, did not have the ability or opportunity to prevent their dissemination, having learned of them only after they had already been published by their originators.”
Such an observation would have to be obiter, albeit strong, given that publication was not the issue for decision.
Two other members of the High Court dissented from the finding (Edelman and Steward JJ) , Steward J referring with to the public meeting analogy in Murray v Wishart in that the actions of the appellant were insufficient to amount to being instrumental in the publication.
Edelman J did not hold that the appellants were not publishers but that what was needed to establish that they were publishers meant that it was necessary to establish publication in respect of each of the Facebook comments by third-party users by establishing that the Facebook comment has a connection to the subject matter posted by the defendant that is more than remote or tenuous.
Steward J considered that the respondent had to establish the publication element in relation to the third party comments which had been procured, provoked or conduced by posts made by the appellants on their respective Facebook pages. It should be noted that the dissenters were not prepared to hold that publication had not taken place. In some cases they felt that someone posting material online might do so in a way that is more culpable than a meeting-organiser and be justifiably considered a “publisher” – for example posting highly controversial material in the hope that algorithmic forces might increase readership and exposure.
In this respect the analogy of a public meeting may be of reduced relevance, given that there are the “dark forces” of algorithms that drive content in certain directions, thus altering the “content neutral” image of the public meeting.
The effect of the majority decision is that responsibility for publication of third party comments does not depend upon actual knowledge of the presence of the defamatory material. The knowledge element only becomes relevant in determining participation in continued publication.
As observed, the law in Australia differs from that in New Zealand. The Court of Appeal in Murray v Wishart has made it clear that an actual knowledge test is necessary for publication. A matter that is shared by both jurisdictions is that in the matter of publication the enquiry is a fact specific one.
Certainly the decision case has prompted change. Even before the High Court of Australia decision Facebook changed its comments functionality in 2021 to allow users greater control.
Concern has been expressed that the decision may alter the defamation landscape. Australian Courts have adopted a much more severe “plaintiff friendly” approach to definition of defamation elements – see Dow Jones v Gutnick, Duffy v Google  SASC 170 and Trkulja v Google. Given the way in which the law has developed in New Zealand it may be unlikely that the distance in legal position will become any closer in the near future. But there could well be a change in focus if a more granular examination of the operation of the technology of the platform is carried out and it is that, rather than questionable analogies, that drives the decision.