On September 8, 2021, the High Court of Australia ruled 5-2 in Fairfax Media Publications Pty Ltd. v. Voller that media companies in Australia could be held liable for defamation as a result of comments left by third-parties on the companies’ social media pages. Although the case is not binding on courts in the United States, it could embolden plaintiffs here to pursue similar causes of action, so it is worthwhile to review the facts and legal analysis set forth by the High Court in its Voller decision.

The facts of the case were fairly simple. The defendants, newspaper publishers and operators of television stations, maintained Facebook pages which hyperlinked to stories on the defendants’ websites. The defendants invited readers who used Facebook to comment about the articles on the media companies’ Facebook pages. The plaintiff, Dylan Voller, claimed that the companies posted news articles about his prior incarceration in a juvenile detention center, which resulted in comments alleged to be defamatory of him on the companies’ Facebook pages. Contending that the media companies were “publishers” of the comments made by readers of their Facebook pages, Voller filed suit.

Before considering the merits of the case, the lower court (the Supreme Court of New South Wales) asked the parties to address whether Voller “has established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users.” The Supreme Court ultimately found in plaintiff’s favor on this issue and that decision was appealed, eventually reaching the High Court of Australia.

In considering the “publication” question on appeal, the High Court reviewed the parties’ arguments at length and also summarized prior defamation cases involving publication. The Court then affirmed the Supreme Court’s decision that the media companies were publishers of the statements, finding as follows:

Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to “Like” or “Share”) to “Comment” on the content by posting a comment which (if not “filtered” so as to be automatically “hidden” if it contained “moderated words”) was automatically accessible in a comprehensible form by other Facebook users.

The High Court was also persuaded by the lower court’s findings that more than 15 million Australians used Facebook and that the companies “chose to operate public Facebook pages in order to engage commercially with that significant segment of the population.” Indeed, the High Court also noted that the number of public comments on the defendants’ Facebook pages led to increased advertising sales for the companies. The Court stated, “Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”

Thus, the High Court of Australia ruled that the acts of the media companies “in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.” The case was then remanded to the lower court to determine if the comments by the third-party users were, in fact, defamatory.

Although this case is not binding on U.S. courts, it still raises many questions – Would such an argument prevail here? Will media companies close their Facebook pages to avoid potential liability? Can comments posted on the pages of individual users of Facebook subject the account holder to liability? Will Facebook or other platforms permit members to turn off comments? It will be interesting to see if the Voller case has ramifications outside of Australia in the coming months and years.

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