By: UGUR NEDIM 27/06/2019
A recent decision by the NSW Supreme Court has paved the way for those who are defamed on social media to take proceedings against not only the poster, but also commercial page administrators.
The preliminary decision in Voller v Nationwide News Pty Ltd and others  NSWSC 766 relates to proceedings brought by former Northern Territory youth detainee Dylan Voller against The Australian, The Sydney Morning Herald, Sky News Australia, The Bolt Report and the Centralian Advocate in respect of defamatory material published by “third-party users” or “commentators” in the comments section of Facebook posts.
The lawyers for Mr Voller asserted that 10 posts on the Facebook pages of the news outlets in 2016 and 2017 carried defamatory imputations, and that the organisations are liable for the content of those posts.
The decision, published on 24 June 2019, makes clear that the outlets are considered to have ‘published’ the comments for the purposes of defamation laws, even though the remarks were published by others and despite the difficulties of monitoring every comment by every member of the public, and in spite of the fact there were no requests by Mr Voller or anyone else for the remarks to be deleted.
The judge states, “I note that the defendant media company has opened and continues to operate a public Facebook page for its own commercial ends. In doing so, it assumes the risks that comments made on that page will render it liable under various laws that may prevent, render unlawful, or render actionable in damages various statements”.
The court ultimately made the following orders:
1. The Court answers the following question in the following manner:
“Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?”
2. The defendant in each proceeding shall jointly and severally pay the plaintiff’s costs of and incidental to the hearing of the separate question.
3. Leave is reserved to the parties to make application within seven (7) days for any special or different order as to costs.
The ruling means administrators of social media pages will need to be vigilant to ensure that potentially defamatory comments are deleted in a timely manner.
But it goes beyond that, because administrators could potentially become liable as soon as just one person sees the defamatory remark.
A spokesperson for News Corp has strongly criticised the decision, saying it: “shows how far out of step Australia’s defamation laws are with other English-speaking democracies and highlights the urgent need for change”.
“It defies belief that media organisations are held responsible for comments made by other people on social media pages. It is ridiculous that the media company is held responsible while Facebook, which gives us no ability to turn off comments on its platform, bears no responsibility at all”.
By the same token, it means that those who are defamed have a cause of action against not only those who post the comments – who may be untraceable or have no means to satisfy an award for damages – but also organisations that allow the comments to be posted, and linger, on their pages.
The decision does not deal with whether social media giants themselves are responsible for publications.
The law on defamation in New South Wales
Defamation is normally thought of as an act which can attract civil liability.
Indeed, a whole piece of legislation is dedicated to the rules relating to the tort of defamation in New South Wales, and there is a wealth of case law that interprets those rules.
That legislation, the Defamation Act 2005 (NSW), is substantially replicated in legislation across Australia.
However, acts of defamatory can attract both civil and criminal liability, depending on their nature and seriousness.
What is civil defamation?
The Defamation Act requires three distinct components to be proved on the balance of probabilities in order for defamation to be established:
Material must be published (which includes orally communicated) to at least one person other than the party who was allegedly defamed.
The publication can occur orally or in writing, whether in print, by way of digital communication or otherwise, but it must be comprehensible.
The material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so.
3. Defamatory meaning
The material must be ‘defamatory’ to the ‘ordinary, reasonable’ person, which means it must be likely to:
cause the person to be shunned, shamed or avoided by others;
adversely affect the reputation of the person in the minds of right-thinking members of society; or
damage to the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in his or her trade, business or profession.