Dear Colleagues;

A highly anticipated decision of the High Court of Australia on internet defamation has been handed down today: see Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (8 Sept 2021) https://eresources.hcourt.gov.au/showCase/2021/HCA/27 . The specific question was whether the manager of a Facebook “Page” open to the public, here various media companies posting links to news items, were to be regarded for the purposes of the law of defamation as “publishers” of allegedly defamatory comments made by members of the public on posts made on the page. The plaintiff here, Dylan Voller, was the subject of particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory.

By a 5-2 majority, the court holds (upholding decisions made by the trial judge and the NSW CA) that yes, the media companies were to be regarded as publishers of the comments made on the news items, simply by the act of establishing the page and posting news items there. The court explicitly does not deal with the possible application of the defence of “innocent dissemination”, leaving that to further proceedings, nor to any other possible defences. The Hong Kong decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 was approved generally, some other overseas decisions were either distinguished or not approved.

Some brief preliminary comments:

• The majority decisions were 2 separate judgements by Kiefel CJ, Keane and Gleeson JJ, on the one part, and Gordon & Gageler JJ, on the other. There is not much to distinguish these.
• The majority and the dissenters (Edelman J and Steward J, in separate judgments) all agree that it should now be seen as settled that a claim of “innocent dissemination” at common law is a defence proper, rather than a “denial of publication” as had been hinted in some earlier decision. This common law defence overlaps with, but seems consistent with, the separate statutory defence under s 32 of the uniform Defamation Act 2005 generally in force in all States and Territories.
• The majority stress that defamation is a tort of strict liability, of course. This is a proposition agreed with by the dissenters, too (Edelman J citing a passage from Rob Stevens to make his point.) But the difference between majority and minority is that the dissenters say that a person in charge of a Facebook Page should only be seen as the publisher of defamatory comments if those comments were relevant to the specific post. Edelman J at [144] frames the test as “by establishing that the Facebook comment has a connection to the subject matter posted by the defendant that is more than remote or tenuous”. Steward J at [186] says the test should be whether the comments were “procured, provoked or conduced by posts made by the appellants on their respective Facebook pages.”. Edelman J gives the example of the media company posting a weather update on their page, and then someone making a random accusation that someone else was a thief in the comments.

Very interesting reading, and there are a number of places where ODG members are cited.

Regards

Neil