Voller v Fairfax: Media Liability in the Social Media Era 15 December 2021

In Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27, a majority of the High Court dismissed an appeal, ruling that media organisations may be liable for defamatory publications made by third parties on their social media content.

This decision has significant impacts for media organisations, which will need to prepare for the considerable risk of litigation associated with social media accounts and as such will need to monitor accounts and posts more closely. More broadly, anyone with a social media account whereby third parties can engage and comment on content should proceed cautiously following this decision.

Background

Dylan Voller brought a defamation claim against media companies for comments relating to him made by third parties on new stories posted to the media companies’ Facebook accounts. The issue before the court was whether the media companies were the “publishers” of the comments.

The primary judges held the appellants were liable for the defamatory comments made by the third parties. The media organisations appealed to the High Court.

Publishers

The High Court held that “publication” in relation to defamation means any act of participation in the communication of defamatory material to a third party. Gageler and Gordon JJ held that as the media organisations had created a public social media page whereby third parties could comment on content, the media organisations had intentionally participated in the publication of defamatory material.[1] Similarly, Kiefel CJ, Keane and Gleeson JJ found that the appellants were publishers as a result of “facilitating, encouraging and thereby assisting”[2] in the posting of comments.

The High Court rejected the innocent dissemination defence put forward by the appellants, holding that the defence does not impact the question of publication.

Implications

The strict interpretation of “publisher” in relation to defamation cases opens the door to significant litigious claims arising out of social media posts by media organisations. In the technological era, organisations have placed increasing reliance on engagement through social media, to not only garner broader readerships but supplement their growth through social media advertising. This decision will change the way media organisations review and monitor their public social media posts, which will likely increase costs for companies needing to moderate third party engagement more consistently.

Take aways

Ø  The definition of “publishers” has been expanded to include anyone with sufficient intentional participation in the publication.

Ø  The innocent dissemination defence is unlikely to be available to subordinate distributors, even where they are unaware of a publication.

Ø  Media organisations, and others with public social media accounts, need to be mindful of third party comments on their posts.

[1] Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27, [105].

[2] Ibid [55].