Fairfax Media Publications Pty Ltd v Voller
High Court of Australia · 2021
Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346
A media company posts a news story on its public Facebook page and members of the public reply. If a reply is alleged to defame someone, is the company a publisher of words it did not write?
In Google LLC v Defteros [2022] HCA 27, Kiefel CJ and Gleeson J described Voller as affirming the principles in Webb v Bloch, under which any act of participation in the communication of defamatory matter is enough to make a person a publisher ([19]-[21]). Their Honours held that Google, which provided a search result with a hyperlink to a newspaper's article, was not a publisher of that article: it did not approve the writing of the matter, did not contribute to its publication on the newspaper's webpage, did not provide a forum or place where it could be communicated, and did not encourage comment likely to contain defamatory matter ([49]). They contrasted the defendants in Voller, whose acts of facilitating, encouraging and assisting the posting of comments rendered them publishers ([33]-[34]). Gageler J agreed with their Honours' conclusion and reasons ([59]); Keane and Gordon JJ would have held that Google published the article ([76]). Voller therefore applies to a defendant whose conduct is connected to the communication in the way the Facebook page operators' conduct was, and was not extended in Defteros to a search result and hyperlink.
In New South Wales the Defamation Act 2005 (NSW), as amended by the Defamation Amendment Act 2023 (NSW), gives a defence in s 31A to the publication of defamatory digital matter where the defendant was a digital intermediary in relation to the publication. Section 4 defines a digital intermediary as a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published. Under s 31A(1) the defendant must prove that it was a digital intermediary, that it had an accessible complaints mechanism for the plaintiff to use at the time of publication, and, if the plaintiff gave a written complaint under the section, that reasonable access prevention steps were taken, if steps were available, before the complaint was given or within 7 days after it. Under s 31A(4) the defence is defeated only if the plaintiff proves that the defendant was actuated by malice in establishing or providing the online service. Under Sch 4 cl 9 the digital intermediary amendments apply to a cause of action accruing after their commencement; the earlier law continues to apply to a cause of action accruing before it, and to a later cause of action brought with earlier ones for substantially the same matter where it accrued within 12 months of the earliest (cl 9(2)-(3)). The section is a defence to a publication, so it qualifies the practical liability consequences of publication by the operator of an online service in New South Wales and leaves the common-law rule on who is a publisher in place. The provisions described are those of New South Wales.
What happened?
Dylan Voller brought three proceedings in the Supreme Court of New South Wales against Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, each of which published newspapers or operated television stations ([1]). Each maintained a public Facebook page on which it posted hyperlinks to news stories and invited comment from Facebook users, and the comments appeared on the page for other users to see ([1], [6]).
Mr Voller claimed that third-party users had responded to posts about stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, with comments that he alleged defamed him, and that the media companies were liable as the publishers of those comments ([2]). The evidence was 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" ([7]). The primary judge, Rothman J, found that certain posts would be expected to draw adverse comments about the subject of the story ([8]), and that the primary purpose of each page was to optimise readership and advertising revenue ([101]).
The parties agreed a separate question: whether Mr Voller had established the publication element of defamation against each defendant in respect of each of the Facebook comments by third-party users ([3]).
What did the Court decide?
Rothman J had answered the separate question in the affirmative and the Court of Appeal of the Supreme Court of New South Wales had dismissed each appeal ([4]). The High Court, by majority, dismissed each appeal with costs. The joint reasons record that no question as to the availability of the statutory defence of innocent dissemination arose ([11]).
Proposition
What is the principle?
A majority of the High Court dismissed the appeals of three media companies and held that they were publishers of the allegedly defamatory third-party comments posted on their public Facebook pages. Kiefel CJ, Keane and Gleeson JJ, in joint reasons, held that liability as a publisher does not depend on knowledge of the defamatory matter or an intention to communicate it, and that a voluntary act of participation in its communication suffices ([27], [32]-[33]); the appellants' acts in facilitating, encouraging and thereby assisting the posting of the comments rendered them publishers ([55]). Gageler and Gordon JJ, in separate joint reasons, reached the same result on the footing that each appellant intentionally participated in the process by which a comment became available, which active and voluntary participation satisfies ([66], [98], [105]). Edelman J and Steward J would each have allowed the appeals in part. Edelman J would have required a manifested intention to publish and held the appellants publishers of comments with more than a remote or tenuous connection to the posted story ([111], [140], [144]); Steward J would have held them publishers of the comments that their own posts had procured, provoked or conduced ([177]-[178], [184], [186]).
Why does this case matter?
Problem questions about pages, forums and comment sections usually begin with a practical question: whom can the plaintiff sue? A student who stops at the commenter has answered a narrower question than the one set. Examiners reward an answer that identifies each person in the chain, says what each did, and tests that conduct against the law of publication before turning to defences.
Exam and application relevance
Identify what the defendant itself did, then say how that conduct connects to the communication. Gageler and Gordon JJ's analysis of the page operators' conduct turned on their creating and administering the pages, posting content on them, and doing so for commercial purposes ([98]-[102]).
Where the case is cited for a point, say whose reasons carry it. The Justices in dissent in the result proposed narrower answers to the separate question than the one the Court gave, and a script can say so by naming Edelman J ([144]) or Steward J ([186]).
The separate question concerned publication, so whether the comments were defamatory and whether any defence applies are further steps in an answer ([3], [11]).
Check your understanding
1. A media company posts a story on its public page and a reader replies with a comment alleged to be defamatory. The company says it did not know of the comment and could not have disabled the comment function. What do the joint reasons at [27] and Gageler and Gordon JJ at [99] say about those matters? 2. Edelman J at [140] and Steward J at [184] each proposed a narrower answer to the separate question than the Court gave. State each Justice's answer. 3. What did the separate question put to the High Court cover, and what matter did the joint reasons say did not arise on it ([3], [11])? 4. Which findings of the primary judge about the purpose of the Facebook pages do Gageler and Gordon JJ rely on at [101]?