On 8 September 2021, the High Court of Australia handed down a decision relating to who may constitute a publisher of defamatory matter. In the case of Fairfax Media Publications Pty Ltd v Voller, Nationwide News Pty Limited v Voller, Australian News Channel Pty Ltd v Voller [2021] HCA 27, the Appellants, Fairfax Media, Nationwide News, and the Australian News Channel, produce newspaper articles and are responsible for the operation of television stations. All three, as part of their daily practice, post content on their respective Facebook pages alongside hyperlinks to the coinciding stories. These posts allow other Facebook users to respond freely with comments.

The three media companies posted content referring to Mr Dylan Voller (the Respondent) and his incarceration in a juvenile detention centre. This content included comments pertaining to the mistreatment of the Respondent in the Don Dale youth detention centre. With this, followed numerous third-party Facebook users responding with comments that were alleged to be false and defamatory by the Respondent. The Respondent commenced proceedings alleging the three (3) media companies were the publishers of those comments.

The media companies appealed the decision on the basis that they were not the publishers of the comments. The High Court disagreed with the media companies and found that they were the publishers of the third-party comments and therefore dismissed the appeals. The High Court held that the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, “participated” in the communication of the defamatory matter to a third person, stipulating that a person may not be the author, yet can still find themselves being the publisher via acts of facilitating and encouraging such posts.

This decision carries with it a warning that a person may be found to have published defamatory matter due to the actions of a third party. The Appellants in this case, being the media companies, were not aware that the defamatory matter had been posted nor did they intend to convey such matter. Despite that, they were still found to be responsible. The practical implications of this decision are not entirely clear at this stage. Arguably, initial publishers may be liable for captions attached to any posts that are shared on social media, not just comments published on their original post. In any event, this decision will certainly affect users of all social media platforms that provide users the ability to comment on posted content. To mitigate the risk that will now invariably attach to any post published on social media platforms, users will need to regularly monitor their posts and filter their comments because, despite not being the author of the defamatory comments, as the publisher, they may nevertheless be deemed liable for the same.

Do you require legal advice in the following areas?

• Can you be sued for third party comments on social media?
• How can a business protect themselves from being sued for defamation?
• What proof do you need to sue for defamation of character?
• Can you sue for social media slander?

For assistance and advice to any defamation or social media matters, please contact the team at Salerno Law.

Contact Matt Krog or Krish Gosai for more information.

DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information.

Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.