Media organisations and businesses in general that invite public comment on their Facebook or other social media platforms need to exercise caution and perhaps reconsider their position following the decision in the wake of the New South Wales Supreme Court decision in the matter of Voller v Nationwide News & ors.
On 25 July 2016, ABC 4 Corners broadcast a program which concerned the Don Dale Youth Detention facility in the Northern Territory and the alleged abuse and mistreatment of detainees. Dylan Voller was a former detainee of the detention centre and was featured in the ABC program.
Following the broadcast, various media outlets published their own stories which were subsequently posted on their respective Facebook pages. In doing so they invited public comment in respect of the matter.
Many of the comments posted on the relevant Facebook pages contained seriously defamatory allegations against Voller. He therefore subsequently issued legal proceedings, not in respect of the original reports or editorials but in relation to the defamatory comments posted on the relevant Facebook pages.
His action, which is still awaiting a hearing, is based entirely on claims that the various media outlets involved, were liable for the comments posted on the relevant Facebook pages by third party users.
On 24 June 2019, New South Wales Supreme Court Judge Stephen Rothman ruled that in operating public Facebook pages which invited third party comment, media companies assume the risks of liability for the defamatory comments posted on their social media sites. In his decision he made the finding that media organisations relied upon their public Facebook pages for their own commercial ends, "exciting the interests of Facebook users; increasing the number of subscribers to the digital media publication or newspaper; and increasing the profile of the public Facebook page and the initial media publication, which affects the advertising revenue".
The decision was largely upheld by the New South Wales Court of Appeal. Paragraph 1. of the headnote of the Court of Appeal decision encapsulates the Court's decision.
"A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees. In this case, the applicants [ie the Defendants] maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally and were, therefore, publishers of the comments."
The matter is currently the subject of a High Court application for special leave to appeal.
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