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Where did my Facebook comments go?

Some people who have made comments on the Independent’s Facebook page may have noticed they have been removed – here’s why.

Newspapers that promote their stories via social media are at risk of legal action if defamatory posts are made on their social media sites.

This was made clear by a NSW Court of Appeal (NSWCA) judgement on June 1, to dismiss an appeal regarding the findings in a civil case: Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd (24 June 2019).

On June 24 last year, the court answered, “yes”, to the question: “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?”

The original case, brought by former Don Dale Youth Detention Centre detainee Dylan Voller, focused on statements about Voller posted on the Facebook pages of The Australian, SMH and other publications between July 2016 and June 2017.

Supreme Court Justice Stephen Rothman ruled that media outlets can be considered the publisher of third-party comments on their Facebook pages.

“Each defendant was not merely a conduit of the comment,” Justice Rothman wrote in his judgement.

“It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.”

However, the court did not make a judgement on whether or not the comments themselves were defamatory.

Meanwhile, in its considerations on June 1, 2020, the Court of Appeal defined defamation as “an actionable wrong that lies in the publication to a reader, listener or observer of matter that injures another person’s reputation”.

The three media companies appealed on four grounds – that the primary judge had erred: in finding the companies were the actual publishers of the comments; by answering additional questions raised during the case; in considering the media outlets as the “first or primary publisher in relation to the general readership of the Facebook page it operates”; and “in holding … that it was possible to hide all comments on a public Facebook page”.

The NSWCA panel of justices found that the last three grounds were not relevant to the appeal case; consequently, they were not considered.
The judgement states, however, that the media companies, “by the terms of their arrangements with Facebook”, had issued “invitations to members of the public to comment on their news items, [and that] the applicants accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments”.

“They did so from the time they made their Facebook pages available to those who wished to comment, and by actively inviting comment,” the judgement states.

“Each applicant’s potential liability as publisher arises not in any sense from a failure to take action to protect a class of persons from harm or to prevent a particular person from injuring any member of that class.

“Rather the effect of the principle … is that a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so, notwithstanding that others may have participated in that publication in different degrees.”

Subsequently, Sydney Criminal Lawyers reported: “These findings of the court were those made by Justice Anthony Meagher and Acting Justice Carolyn Simpson.

“The findings of Justice John Basten differed slightly, although he delivered the final orders.

“On 5 June, his Honour ordered that the appeal be dismissed, and that the three media organisations pay Mr Voller’s court costs.
“And the two other justices agreed with the orders of Justice Basten.”


Editor’s note: Whilst we welcome community comment and debate, we ask contributors to our social media platforms to keep it civil. We will not hesitate to remove any post deemed unsuitable.