If you allow the public to post on your social media pages, you are the publisher of what they say – including anything defamatory. That's the upshot of today's decision by the High Court in appeals by Fairfax Media Publications, Nationwide News and Australian News Channel, who were sued by Dylan Voller over comments left by the public on their social media pages under stories about Mr Voller ([2021] HCA 27).
All three appellants posted their news stories on social media to encourage likes and shares, which boosted their distribution. The channels they used included Facebook, which does not allow comments to be disabled, but does permit the page owner to hide, review and delete comments.
Chief Justice Kiefel and Justices Keane and Gleeson (with whom Justices Gageler and Gordon concurred) underlined the traditional approach in defamation law: "any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher… All that is required is a voluntary act of participation in its communication." By "facilitating, encouraging and thereby assisting the posting of comments" by the public, they became the publishers. In doing so, they reiterated that defamation is a tort of strict liability and rejected the appellants' argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. What is relevant is an intentional participation in the process by which a posted comment may become available to be accessed by other Facebook users.
So does that mean you should take down your corporate social media pages? That would be an over-reaction to this decision. Crucially, the High Court was only asked to decide if the three media outlets were publishers, but not if the defences in the Defamation Act 2005 (NSW) are available (other States have similar defences). However, the decision does make it clear that it is wrong to assert that any successful defence of innocent dissemination would result in the defendant being deemed not to have been a publisher, as being a publisher (albeit secondary) is a necessary integer of what is required to plead such a defence. Since this appeal arose from the determination of a separate question prior to the remainder of the proceedings, the matter could return to a lower court to assess whether the appellants are innocent disseminators, or have other defences such as justification or truth. The outcome of that argument will give owners of social media pages a better idea of what level of monitoring they need to impose.
In the meantime, if your organisation maintains a social media page which allows comments on your posts, you should review your monitoring of third-party comments and the training of your social media team in flagging and (if necessary) escalating problems to ensure you can have respectful, non-defamatory conversation with stakeholders.