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Potter, Richard --- "A Case of Plus Ca Change: Fairfax Media Publications Pty Ltd v Voller" [2023] PrecedentAULA 41; (2023) 177 Precedent 14

A case of plus ça change

Fairfax Media Publications Pty Ltd v Voller^[1]

By Richard Potter SC

The more things change, as the saying goes, the more they stay the same. This case concerned publication by way of defamatory third-party comments to media articles posted on a number of different Facebook pages administered by three large media companies. In the end, though, despite involving 21st-century technology, the issue fell nicely to be decided by the High Court under common law principles contained in an English legal text dating from 1830.^[2]

Indeed, the case reached back even further. In the Court of Appeal, the media companies relied upon a case from the Star Chamber of England in 1610.^[3] In response, in Mr Voller’s written submission to the Court of Appeal, he pointed out that the case ‘was decided when Shakespeare had yet to write his final plays and the Mayflower had yet to set sail for the Americas’.^[4]

It was a case of contrasts in other ways too.

On the one hand, it concerned Dylan Voller, an Aboriginal man who had been in and out of youth correctional centres in the Northern Territory and was the subject of a Four Corners episode in 2016, in which he was shown shackled to a restraining chair and covered with what is now known as a ‘spit hood’. This later gave rise to the Royal Commission into the Protection and Detention of Children in the Northern Territory.^[5]

On the other hand, three of the nation’s leading media organisations – Nationwide News, Fairfax Media and Australian News Channel, better known as Sky News – joined as one to defend Mr Voller’s action for defamation all the way to the High Court.

The action arose out of several separate Facebook posts by the media companies on their own self-administered public Facebook pages. There were multiple publications, but one will suffice as an example. On 14 December 2016, the following post was made on the Facebook page of Sky News, appearing under ‘The Bolt Report’: ‘LIVE NOW: The Royal Commission has promoted Dylan Voller as the hero victim of prison officials – it’s a disgrace.’

As with all Facebook platforms, the public were invited to comment, and many did. Again, one comment is enough to illustrate the nature of the issue: ‘[Named commentator]: he has a very long history of violence ... This little darling smashed a fire hydrant over the face of a Salvation Army officer because the officer forgot to bring in some coins for the drink and lolly machine and the officer ended up being blind in one eye ...’

It was never contended by the media companies that these allegations were in fact true. Mr Voller took the unusual step of commencing proceedings without asking for a takedown first (something that is no longer possible under the new regime, which requires a concerns notice to be sent first).

FIRST INSTANCE: NSW SUPREME COURT

The media companies sought to get on the front foot by asking the Supreme Court of NSW to determine a separate question before they put on their defences. Given that they did not write or post the third-party comments and that the comments appeared on the Facebook platform rather than their own website, the companies claimed not to be publishers in law of the comments and therefore not liable. They further claimed that it was too hard to monitor comments at the times they were made as, on a daily basis, there were thousands of comments on hundreds of posts and it was impractical to expect that monitoring could be effectively carried out. In all the posts, it was acknowledged that they were posted on Facebook (with hyperlinks back to their website, which generated advertising revenue) because of the high public interest in Mr Voller at the time.

Also, when more and more people commented, the Facebook algorithm duly expanded publication of the post (with comments) to a wider circulation base of Facebook users.

The orthodox defence of an online publisher who receives no notice or takedown request prior to being sued is the defence of innocent dissemination both at common law and under s32 of the uniform defamation legislation. Under the statutory defence, the publisher (which must be a ‘subordinate publisher’, that is, not the primary distributor or author and with no editorial control before publication) is not liable if it neither knew nor reasonably ought to have known that the matter was defamatory, and the lack of knowledge was not due to any negligence on its part (such as, for example, a deliberate ‘see no evil’ policy).

However, the strategy of the media companies was to try and win the action before they filed any defences of innocent dissemination. They attempted this by seeking the determination of a separate question, namely, has the plaintiff established the publication element of the cause of action for defamation against the defendants in respect of each of the Facebook comments by third-party users?

At first instance,^[6] Rothman J considered the evidence (which included cross-examination of the parties and a social media expert) and found that, despite the fact that the media defendants did not post the comments, they administered their Facebook pages. This gave them a degree of platform control to block individuals and activate a dictionary filter for any specified word. They therefore could have blocked all comments until vetted. However, the fact was, they had not sought to block or filter any of the relevant posts and had obtained a benefit from the multiplicity of comments by operation of the algorithm directing viewers to their own web pages.

Internet publication occurs when material is downloaded from a website and comprehended by a reader operating a computer or other device to access the internet.^[7] Liability for publication has been clear under Australian common law since 1928. In Webb v Bloch (Webb),^[8] Isaacs J adopted a statement from Starkie: ‘All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication’.^[9]

Such a broad, sweeping statement catches virtually any participation in the act of publication. However, it is tempered by the existence of the defence of innocent dissemination, which evolved to protect the unwitting newsagent or other printer or distributor who knew nothing of the libel. Justice Rothman then considered the various authorities concerning liability for third-party publication, including Byrne v Deane^[10] (Byrne), where a golf club was liable for a defamatory notice on its community board (where it had refused to take it down), and Urbanchich v Drummoyne Municipal Council^[11] (Urbanchich), where a local council was held responsible for defamatory posters on its bus shelters after it failed to take them down when put on notice.

Nearer to the relevant facts was the Hong Kong case Oriental Press Group Ltd v Fevaworks Solutions Ltd^[12] (Oriental Press), which was determined by the highest court there (which included former Chief Justice Gleeson at the time). In that case, the defendants were administrators and hosts of an internet discussion forum on their website. The leading judgment was delivered by Ribeiro PJ, with whom all the other justices agreed. The Court had little difficulty in holding that the defendants were publishers of matter published by third parties on a discussion-forum platform. However, the defendant then succeeded in a defence of innocent dissemination as there were thousands of discussion threads involved and so very different to the Facebook scenario:

‘Unlike the hosts of a discussion forum involving many thousands of discussion threads, the creators of such a blog or Facebook page have a relatively narrow horizon to monitor and, given that the express purpose is to mount a campaign critical of others, they might reasonably be expected to exercise particular care in respect of potentially defamatory comments posted at their invitation.’^[13]

Justice Rothman agreed with this approach and found that, notwithstanding that the defendants did not own the Facebook platform, they each had a proximate degree of control in monitoring third-party comments and were therefore publishers under the principles of Webb.

THE COURT OF APPEAL

The media defendants appealed to the Court of Appeal and adopted an argument that they were not instrumental in publication, but merely operators or users of the Facebook platform and ‘but for’ this restricted use of the platform, they would have no connection with the defamatory comments. They also argued that the finding imposed an obligation or duty to take positive action or exercise control over third-party comments, which would threaten freedom of speech.

The Court of Appeal^[14] reiterated that liability for publication has always been strict, a principle recently confirmed by the High Court in Trkulja v Google LLC^[15] (Trkulja), where it was confirmed that all degrees of participation constituted publication.^[16] On that basis, even simply administering the Facebook page and inviting comments to posts was sufficient to make them publishers. The argument that their failure to take action to monitor should not be determinative of liability for publication was a mischaracterisation of this principle, which depends upon the degree of participation in publication. The media companies operated their public pages and encouraged and facilitated third-party comments and therefore relevantly participated in publication.

THE HIGH COURT

The media companies then sought and were granted special leave to appeal to the High Court. Rather than run the same argument again (that they were not instrumental in the act of publication by the third parties), the media companies came up with a new argument – that they could not be liable for the comments unless there was intention on their part to publish.

In other words, a passive role in simply inviting comments was not enough to be liable. The foundation for this argument was another statement by Isaacs J in Webb, which came from the 1891 edition of Folkard on Slander and Libel: ‘since, if he has intentionally led his assistance to its existence the purpose of the published, his instrumentality is evidence to show a publication by him.’^[17]

Although the media companies did not rely on the defence of innocent dissemination (no defence having been filed in the proceedings at that stage), they also drew support from early cases on innocent dissemination, such as Emmens v Pottle.^[18] The argument here was that innocent dissemination as formulated in the late nineteenth-century cases, meant no publication had happened (as opposed to a defence to publication). In other words, an element of intention was required to publish – otherwise there had been no publication.

Kiefel CJ, Kean and Gleeson JJ

The media organisations’ arguments were peremptorily dismissed.^[19] No question as to the knowledge or intention of the publisher arises. As Dixon J said in Lee v Wilson and Mackinnon:^[20] ‘[t]he communication may be quite unintentional, and the publisher may be unaware of the defamatory matter’, but the person communicating the defamatory matter will nevertheless be liable. Trkulja did not support this argument either, but simply confirmed that any act of participation was sufficient.

The unfairness of strict liability is balanced by the existence of the defence of innocent dissemination, and the Court recited the emergence of this doctrine in 1885,^[21] whereby a person (for example, a newspaper vendor) did not know it was libelous and that lack of knowledge was not as a result of negligence on their part. The rule on publication was a strict one and not a rebuttable presumption. These cases therefore gave no assistance to the intention argument. The defence of innocent dissemination means that publication actually took place, but the defendant was not responsible for it.

Furthermore, Byrne and Urbanchich (liability for defamatory statements affixed to a defendant’s property), did not assist as liability there occurred after the owner became aware of it and declined to remove it (so there was no innocent dissemination defence).

It was therefore held that the Court of Appeal was correct to hold that the acts of the media companies in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered those companies publishers of those comments.

Gageler and Gordon JJ

This judgment agreed with the plurality above and added a number of further observations. The word ‘intentionally’ in Folkard was directed to an intention to facilitate or provide a platform for communication of the defamatory matter. Justice Ribeiro in Oriental Press was correct when he said that a person is a publisher of defamatory matter ‘if by an act of any description’ the person ‘intentionally assisted in the process conveying the words bearing the defamatory meaning to a third-party, regardless of whether he knew that the article in question contained those words’.^[22]

The strictness was also illustrated by Thompson v Australian Capital Television Pty Ltd^[23] (Thompson), where the defendant was liable for publication even though it was just facilitating another broadcaster’s TV signal that happened to contain defamatory material. Thompson also confirmed that the defence of innocent dissemination was one of publication but defensible by ‘confession and avoidance’, that is, forgiveness from liability for publication.

The judgment went on to explain the history of the evolution of innocent dissemination when the cause of action for defamation carried an assumption of malice on the part of the defendant. This was a rebuttable presumption where a defendant could establish justification or excuse for publication. Reference was made to a pleading text from 1882 to illustrate this.^[24]

Leaping forward to the 21^st century, the process of publication through the internet has changed orthodox publication from ‘one to many’ to ‘many to many’, but that has not changed the principles of publication in law at all. This is a stable common law principle which, when tempered by defences such as innocent dissemination, provides a balance between freedom of communication and protection of reputation.

On the facts of this case, each of the media companies became a publisher of each comment posted on its public Facebook page, when each comment was accessed in a comprehensible form by another Facebook user. They participated intentionally in the process by which the posted comment had become available to be accessed by other Facebook users.

Under the Facebook platform, users have the option to ‘like’ or ‘share’ a comment on the content if not filtered or moderated by the administrator to hide certain comments. The judgment concluded:

‘Any attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of their Facebook functionality, the appellants bear the legal consequences.’^[25]

Dissenting judgments

Justice Edelman agreed that the tort is one of strict liability and considered that the defence of innocent dissemination is a true defence and not a negation of publication. However, a distinction was drawn between third-party comments that were related to the content of the post (attracting liability) and ones that were not so connected.^[26] Justice Edelman declined to go into the evidence of the comments but held that neither answer sought by the parties was appropriate, but that the appeal should be allowed and the question answered to the effect that liability depended on a connection between the comment and the subject matter of the post.

Justice Steward sought to differentiate comments made on posts which were procured, provoked or conduced by the content of the posts themselves – in other words where the post itself was likely to attract adverse comments in response. On the evidence here, only some were in that category, so the appeal should be allowed with the question answered that liability for publication will depend on establishing that the comments were in essence provoked by the nature of the post itself.

CONCLUSION

The media companies were free to later plead the defence of innocent dissemination, but given the strident comments from the majority of judges in the High Court about their role as Facebook administrators, they obviously considered their chances of establishing no knowledge or negligence to be slim, and the case was settled on favourable terms to Mr Voller.

Given the commercial advantages to the media of the Facebook platform, there does come a responsibility to monitor defamatory third-party comments rather than just take the ‘see no evil’ approach, which can be incredibly damaging to the person defamed with little recourse. This decision therefore places an obligation to both temper inflammatory posts as well as monitor the responses.

Richard Potter SC specialises in all aspects of media law, including defamation and contempt. EMAIL potter@153phillip.com.au.

^[2] T Starkie, A Treatise on the Law of Slander and Libel, 2nd ed, 1830.

^[3] John Lamb’s Case [1572] EngR 211; (1610) 9 Co Rep 59b; 77 ER 822.

^[4] I was junior counsel for Mr Voller in the Court of Appeal and then the High Court. I heard that after oral argument had finished, one of the justices of the High Court approached an Equity judge in Sydney and sought access to his formidable library of ancient legal texts as the High Court library was unable to drill down to the requisite degree of legal history.

^[5] Commonwealth, Final Report (2017).

^[6] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766.

^[7] Dow Jones Inc v Gutnick (2002) 210 CLR 575, [26].

^[8] [1928] HCA 50; (1928) 41 CLR 331.

^[9] Ibid, 364.

^[10] [1937] 1 KB 818 (Byrne).

^[11] (1991) Aust Torts Reports 81–127 (Urbanchich).

^[12] [2013] HKCFA 47; (2013) 16 HKCFAR 366 (Oriental Press).

^[13] Ibid, [92] (Ribeiro J).

^[14] Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Ltd v Voller; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.

^[15] (2018) 263 CLR 149 (Trkulja).

^[16] Ibid, [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

^[17] Folkard on Slander and Libel, 5th ed, 1891, 439.

^[18] (1885) 16 QBD 354 (Emmens).

^[19] Fairfax, see above note 1, [22] and [35] (Kiefel CJ, Kean and Gleeson JJ).

^[20] [1934] HCA 60; (1934) 51 CLR 276, 287.

^[21] Emmens, above note 19; Vizetelly v Mudies Select Library Ltd [1900] 2QB 170.

^[22] Fairfax, above note 1, [68] per Gageler and Gordon JJ; Oriental Press (Ribeiro J), [19].

^[23] [1996] HCA 38; (1996) 186 CLR 574 (Thompson).

^[24] Fairfax, above note 1, [79] per Gageler and Gordon JJ re Bullen and Leake’s Precedents of Pleadings, 4th ed, 1882, Pt I, 390.

^[25] Fairfax, above note 1, [102] (Gageler and Gordon JJ).

^[26] Ibid, 140 (Edelman J).