By Matthew Smith

In a ruling that could force traditional publishers to rethink how they engage with social media, Australia’s highest court has delivered a landmark judgment that media outlets that post articles on Facebook’s platform are liable for third party comments on those posts.

On 8 September 2021 the High Court in Fairfax v Voller [2021] HCA 27 held that media companies, by creating a public Facebook page and posting content on that page, facilitated and encouraged comments from other Facebook users on their posts. In doing so, the media companies should be considered publishers of the comments and are therefore responsible for any defamatory content they contain.

This is a marked development on former case law that people can be held liable for the continued publication of defamatory statements on platforms they control, such as notice boards, only after they became aware of the comments.

The decision enables former juvenile detainee Dylan Voller to sue some of the country’s largest media organizations, Fairfax Media Publications, Nationwide News and Australian News Channel, for defamation.

Voller seeks to sue over comments posted on the Facebook pages of The Sydney Morning Herald, The Australian, Centralian Advocate, Sky News Australia and The Bolt Report.

His defamation case was launched in the Supreme Court of New South Wales in 2017 but was put on hold while the separate question of whether the media companies were liable for Facebook users’ comments was decided.

According to Voller’s lawyer:

“This decision put responsibility where it should be; on media companies with huge resources, to monitor public comments in circumstances where they know there is a strong likelihood of an individual being defamed”.

In a statement, Executive chairman of Newscorp Australia Michael Miller said:

“The ruling was significant for anyone who maintains a public social media page by finding they can be liable for comments posted by others on that page even when they are unaware of those comments,”

“This highlights the need for urgent legislative reform and I call on Australia’s Attorney General to address this anomaly and bring Australian law into line with comparable western democracies”.

This case serves as an important reminder for social media users to exercise caution with content published on their social media platforms.