In a landmark ruling, the High Court of Australia has held by majority that news media companies may be liable for comments left by users on their social media posts.

This case began due to defamatory comments left by users on Facebook posts created by Fairfax Media and News Corp. Both Fairfax Media and News Corp utilise Facebook as a means of publicly sharing content online and allow users to interact with news stories and articles they have posted. Facebook users can comment on these posts and all comments are shown publicly. In this case, several users posted defamatory comments aimed at Dylan Voller, a juvenile offender who was mistreated in a youth detention centre. Consequently, Dylan Voller issued proceedings against the media outlets as publishers for the defamatory comments on their posts.

Fairfax Media and News Corp argued that they should not be regarded as publishers of unique comments left on content uploaded to their Facebook pages. This was due to the inability to control Facebook comments nor any intention to assist in public defamation against Dylan Voller. At first instance, the primary judge treated this case in two separate parts – one being an issue of publication, and the other being whether Dylan Voller had successfully ‘established the publication element of the cause of action of defamation against the defendants in respect of the Facebook comments by third-party users’. The position of the primary judge was upheld by the Court of Appeal and was further appealed to the High Court.

The High Court rejected this appeal by noting that defamation is judged on strict liability. This means that a ‘defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care.’ It was not good enough to paint themselves as passive bystanders, Fairfax Media and News Corp were functionally facilitating and participating in the communication of such defamatory comments left on their Facebook pages.

Although not all of the High Court saw eye to eye. Justice Edelman found it illogical to conclude that a news media company may be found liable for comments that were not immediately present in the story. For his Honour, this fell on a matter of showing a connection that is more than ‘remote or tenuous’. Justice Steward took a similar view regarding the infinite trail of comments that may spark after a post. His Honour believed that Fairfax Media and News Corp should only be held liable for posts that ‘procured, provoked or conduced’ defamatory comments. However, by majority decision, the High Court held that individuals or companies that create a publicly accessible Facebook page will be deemed to have facilitated, encouraged and/or assisted in the publication of comments from third-party Facebook users.

This decision will undoubtedly have an immense impact on how news media companies operate online. With an added risk of digital liability for Facebook users, we may soon see a new era of public censorship.

For the full reading of the judgment, see here