DEFAMATION: Watch out for Trolls!

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

In a decision on Monday, 1 June 2020, the NSW Court of Appeal held that news outlets were liable as “publishers” for readers’ Facebook comments partially because they “encouraged and facilitated” comments by setting up public Facebook pages.

What is Defamation? 

Defamation is the publication of unsubstantiated ‘facts’ that negatively impacts the reputation of an individual.  In New South Wales and Queensland, compensation claims for damages arising from defamation are governed by the provisions of the Defamation Act 2005 (NSW) and Defamation Act 2005 (Qld) respectively. 

The Voller Case

In July 2017, former youth detainee Mr. Dylan Voller commenced proceedings against three media companies, Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd claiming damages for defamation based on the content of third party comments on their Facebook pages. 

These substantive proceedings raised four questions for the Court to examine: namely,

  1. Did the media companies publish the posts?
  2. Were the posts defamatory?
  3. Were there defences with respect to the publications (for example: triviality, innocent dissemination, substantial truth)?
  4. What damages should be awarded?

Did the defendants “publish” the posts? 

Pursuant to rule 28.2 of the Uniform Civil Procedure Rules (NSW), the parties agreed to have the first issue (the publication issue) initially heard separately given the other elements largely hinged on this first issue. 

In 2019, Rothman J at first instance held that the media companies, as the owner of a public Facebook page, “assumes the risks that comments made on that page will render it liable”. 

Rothman J held that these large media companies had the resources available to oversee and moderate the comments. This includes disabling all public commenting (particularly on controversial articles which may likely give rise to defamatory material) and hiding all comments by applying filters of very common words and approving comments that are not defamatory. 

This decision was largely upheld by the New South Wales Court of Appeal, as Basten JA, Meagher JA and Simpson AJA highlighted that the media organisations subscribe for a Page and “encourage and facilitate” the making of comments by third parties.

Meagher JA and Simpson AJA state:

…a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees”.

Innocent Dissemination Defence?

Crucially, the Court of Appeal clarified that media organisations may still seek to rely on the defence of “innocent dissemination” at final trial. There has not been any finding at this stage that the comments were in fact defamatory.

It is anticipated this decision, particularly if it is appealed to the High Court, would apply to cases in Queensland given the similarities between the jurisdictions on the law of defamation. 

Written By James Tan and Luke Borgert

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