Fairfax Media Publications v Voller [2021] HCA 27

Author: Jasmine Burrows, Progressive Legal

Facts

A respondent named Dylan Voller (Voller), who used to be in a youth detention centre in the Northern Territory, brought proceedings against three appellant media companies.  

The organisations he sued include Fairfax Media, the Australian News Channel (who runs Sky News), and Nationwide News. 

The matters Voller complained of included comments he considered to be defamatory that were posted on each organisation’s Facebook page by third-party Facebook users.   

These comments were in response to articles on the Facebook pages of Sydney Morning Herald, The Australian, Sky News, The Bolt Report, and The Centralian Advocate.  

These comments were made between July 2016 and June 2017. 

In his claims, he never claimed that the media companies refused to remove the defamatory content from their Facebook pages once they knew about it.  

Instead, Voller’s argument was that each of these media companies is considered a publisher of any comment posted by a third party on their Facebook page, even before they’re aware of the comment, as soon as it’s posted and read by someone else. 

A first instance, the Court decided in favour of Voller and found that the media companies were a publisher of the third-party comments. The media organisations proceeded to appeal to the High Court.  

Issues

Whether or not the appellants were ‘publishers’ of third-party comments on their Facebook pages, for the purposes of establishing defamation. 

Decision

The appeal was dismissed with costs.  

It was ruled that companies who run Facebook pages are prima facie liable for all defamatory comments made by third parties.

Reasoning

The Court found that the media companies had intentionally encouraged third-party comments on their Facebook pages. So, they became publishers as soon as users posted comments. 

In order for the media outlets to be considered as publishers, it does not matter whether they had knowledge of the defamatory matter or whether they had an intention to communicate it.  

Defamation operates as a tort of strict liability. This means that having an intention to publish is not required, merely that the defamatory material is published is sufficient.  

Their Honours interpreted the word ‘intention’ to mean ‘an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter… irrespective of the knowledge or intention on the part of the participant as to the defamatory content of the matter published.’   

Their Honours focused on the fact that the media outlets ‘provided a forum for its publication and encouraged for its own commercial purposes, the publication of comments.’  

In simple terms, if someone communicates something defamatory to a third person, they can be held liable as a publisher. Any voluntary involvement in spreading defamatory content to others makes someone a publisher. 

This was seen as happening because the media outlets had agreements with Facebook, posted content on their pages, and allowed others to comment on it. This is different from past cases where physical things like billboards were defaced with hurtful words, and the defendant wasn’t considered a facilitator. 

The Judges also clarified the defence of innocent dissemination. The defence of innocent dissemination is a legal principle that provides protection to intermediaries, such as publishers, booksellers, or photocopiers, who unknowingly disseminate defamatory content created by others.  

It was found that innocent dissemination is a defence and not, as had previously been indicated in some cases, a negation of the element of publication in the case of action.

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