Defamation and social media — what does the ‘Voller case’ mean for you?
9 July 2019
The Supreme Court of New South Wales, has delivered judgment on a preliminary question in a defamation case regarding liability in defamation for third party posts on a Facebook page.
The case is Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766
The facts pertain to a former Northern Territory youth detainee, Mr Dylan Voller. Mr Voller issued defamation proceedings over a series of claims made about him in the comments section of posts made on the Facebook pages of The Sydney Morning Herald, The Australian, the Centralian Advocate, Sky News Australia and The Bolt Report.
Mr Voller’s case was that certain comments published in the Facebook posts were false and defamatory.
The fundamental issue for the Court to determine was whether each of the defendant media outlets were liable for the defamatory material in the third-party comments.
As part of the proceedings, Rotham J was required to answer a preliminary question in relation to whether it could be said that Mr Voller had established the ‘publication’ element of defamation against the media companies because the comments were not made by the media outlets, but by third-parties.
The Court said that the answer to that question was ‘yes.’
Rothman J was satisfied that, on the balance of probabilities, the defendant media outlets were first or primary publishers in relation to the general readership of the public Facebook pages they respectively operated. However, even if he was wrong on that, in the alternative, each media outlet would be a subordinate or secondary publisher and, plainly, each had participated in the publication of the relevant comments.
In reaching the decision on the preliminary question, the Court placed emphasis on the Facebook page functionality of the media outlets public Facebook pages. That is, all comments could be ‘hidden’ and then ‘unhidden’ once they had been reviewed, noting that it is not the compiling of a comment that gives rise to damages in defamation; it is the publication.
The Court concluded that when a person operates an electronic bulletin board, such as a public Facebook page, where comments containing defamatory material can be posted, the ‘owner’ of that page cannot escape the likely consequences of its actions by turning a ‘blind eye’ to it.
While it remains to be seen if the decision will be the subject of appeal, consistent with our previous advices on this topic, councils, as well as elected members, who operate or otherwise maintain a Facebook page for the purposes of conducting council business, are ‘on notice’ that they can be held liable for defamatory material posted in third-party comments.
In managing these risks, we recommend that councils review their social media guidelines and/or their policies and procedures, to determine how, or even if, they contain provisions for the review and appropriate management of third-party comments made on a council Facebook page. In addition. Councils must ensure that guidelines are in place for the use of social media by employees and elected members.
Similarly, elected members must be vigilant in their responsibilities as Administrators of their own Facebook pages. This is whether such pages are separately established for the purposes of conducting council business or are otherwise of a personal page, used to conduct council business. The responsibility is to delete or to otherwise remove inappropriate comments and block users who engage in such practices, particularly those who do so on a regular basis.
In this manner, councils and elected members can demonstrate vigilance in relation to the manner in which the Facebook pages they operate are being used. In turn, this should mitigate against any potential exposure in defamation for the publication of defamatory material by third parties on their Facebook pages.
Clearly, this same principle has equal application to any social media that is operated in circumstances where third-parties are able to contribute by postings or otherwise.
If your council would like further information or training on this topic, or otherwise assistance in preparing or reviewing a social media policy or procedure, please contact Michael Kelledy on 8113 7103 or email firstname.lastname@example.org or Tracy Riddle on 8113 7106 or email@example.com