In what is being heralded as a landmark decision, the High Court of Australia has confirmed that media outlets are potentially liable as publishers of defamatory comments posted on social media platforms by third-party users.
On 8 September 2021, the High Court dismissed appeals from three of Australia’s largest media companies concerning whether, by posting content relating to news stories about former Northern Territory youth detainee Dylan Voller, on their respective Facebook pages, they were liable for the publication of allegedly defamatory comments that were posted by third-party Facebook users in response to the content.
The court rejected the media companies’ argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it.
In dismissing the appeals, the High Court held that by creating a public Facebook page and posting content on that page, the media companies facilitated, encouraged and thereby assisted in the publication of comments from third-party Facebook users. They were therefore publishers of the third-party comments.
The case originated in the NSW Supreme Court which ordered that the question of whether the media companies were in fact the “publishers” of the defamatory material should be determined as a separate question. This means Mr Voller can now proceed with his defamation action against the media companies.
The implications of the High Court decision will no doubt be far-reaching and is likely to affect all social media platforms, including Instagram and Twitter. If a person posts something on a social media platform and encourage or invite third party comments, they could be liable for any comments or posts that people subsequently make in response.
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