[This is an extended version of an article published in the August 2019 edition of the Law Society Journal. You can read the published version of the article in the electronic edition of the Journal by clicking here].
“Never read the comments” is often said to be one of the cardinal rules of the Internet – indeed, if you need reminding of the importance of the rule, the Internet will helpfully supply you with “Never read the comments” T-shirts and cross-stitch patterns so that you don’t forget. And although there is much disagreement as to whether or not Winston Churchill actually uttered the oft-ascribed quote that “the best argument against democracy is a five-minute conversation with the average voter”, many would find little disagreement if a modern-day Winston Churchill was to opine that “the best argument against democracy is five minutes spent reading the comments posted by the average Facebook user”.
However, whenever there is a rule, there will be exceptions which prove the rule. One important exception is that if a business allows comments on its website (or has a public Facebook page, which allows comments to be posted as a result of Facebook’s settings) it seems that someone will have to read the comments to identify (and if necessary, remove) problematic comments.
The reason for this is that comments can give rise to legal liability for the business, even where the business is not the commenter. In particular, as a recent decision of the Supreme Court of New South Wales (Voller v Nationwide News Pty Ltd  NSWSC 766) has demonstrated, encouraging or promoting the publication of comments might be enough to make the business liable as a “publisher” to a person defamed by those comments.
The Voller decision – background
Dylan Voller is an indigenous man who in his early years was not unknown to the criminal justice system in the Northern Territory. In 2016, he became known to the Australian public when footage of him restrained in a chair in a detention centre was broadcast by the ABCs “Four Corners” program.
Subsequently, many articles and television stories concerning Mr Voller were generated by a number of Australian media companies, including Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd (now part of Nine Entertainment) and Australian News Channel Pty Ltd (which is responsible for Sky News Australia and the Bolt Report). Each of these three media companies posted stories concerning Mr Voller to their public Facebook pages. Each of them was sued by Mr Voller for defamation – not because any of the stories were alleged to be defamatory, but because Mr Voller claimed to have been defamed by comments posted on Facebook by Facebook users in response to those stories.
This raised a question as to whether the media companies could be liable for the content of comments written by third parties, which was dealt with by Justice Rothman as a preliminary question. The specific question which Justice Rothman was asked to determine as a separate question was:
“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 that are alleged to be defamatory?”
This question was answered “Yes” (or in slightly longer form, “Yes, with costs”). To understand why that answer was reached, it is necessary to understand what “the publication element” means in the context of an action for defamation.
The “publication element” of the cause of action for defamation
The leading Australia defamation texts describe publication as, “an essential part of the plaintiff’s cause of action” and, “the foundation of the cause of action for defamation”. However, that does not mean that the identification of the publication element is a simple matter; Justice Palmer has observed (in Tom & Bill Waterhouse Pty Ltd v Racing New South Wales (2008) 72 NSWLR 577 at ) that:
“the law of defamation has loaded the word “publish” with a gloss which would seem bizarre to all but the cognoscenti.”
The critical “publication” issue which arises in relation to Facebook comments is that anyone who is a voluntary participant in the publication of a defamatory matter is themselves a publisher. Because publication in the defamation context means “communication” rather than “authorship”, a person who communicates defamatory words composed by others will be a “publisher” of those words. So, if the media companies were “participants” in the publication of users’ comments, they could be liable for defamation. To determine whether the media companies were “participants”, it is necessary to consider a further topic which may seem bizarre to all but the cognoscenti; namely, how Facebook works.
The operation of Facebook and Facebook comments
When a media company (or anyone else who is using Facebook for a commercial purpose) sets up a public Facebook page and posts content to that page, the intention is for that content to be seen. To what extent it is seen depends upon Facebook’s algorithm. Although the precise detail of Facebook’s algorithm is confidential, in general terms the algorithm prioritises content which receives “engagement” – which includes comments and likes.
Accordingly, attracting comments is an important part of posting content to Facebook (and indeed, even if the operators of public Facebook pages wished to disable commenting altogether, it appears that Facebook does not allow this to happen). However, comments can be moderated either after the event, or pre-emptively by “hiding” comments which contain specified words. A “hidden” comment is only visible to the user and to their Facebook friends, but it can be “unhidden” by the “Administrator” of the page.
The evidence before Justice Rothman showed that different media companies made use of the ability to ”hide” comments by including specific words (such as profanities or racial slurs) on a list which would cause the comment to be “hidden”. However, an expert called by Mr Voller suggested that the “hiding” feature could be used to pre-moderate nearly all comments if the list of words which caused a post to be automatically hidden included common words such as “a” and “the”. Although the expert conceded at the hearing that this approach would not be perfect (because it would not hide, for example, a comment consisting of a single uncommon word) Justice Rothman found (at ) that:
“by the use of a list of prohibited words that includes words that would be necessary to render any comment intelligible, such as all pronouns; the definite and indefinite articles; and all conjunctions and prepositions, the Administrator is able to hide all comments, pending the monitoring of such comments”.
The basis for concluding that the media companies were publishers
The finding that “hiding” and subsequent moderation of comments was possible was central to Justice Rothman’s conclusion that the media companies were “publishers” of the comments. This finding lead to the conclusion (at ) that:
“Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.”
Accordingly, by being more than a conduit, the media companies were participants in the publication. However, the gap between the technical ability and the practical ability of media companies to monitor comments (in circumstances where, for example, the evidence showed that the Sky News Australia Facebook page could receive up to 7000 comments in a day) was explored in less detail. Justice Rothman appears to have regarded the cost of providing employees to moderate the comments as being a necessary response to the risk which the media companies had chosen to run by operating Facebook pages (and by posting stores to those pages which attracted comments which “more probably than not would include defamatory material” concerning Mr Voller).
Implications of the decision
It has been reported that the media companies have recently filed an appeal against Justice Rothman’s decision. As the decision is an interlocutory judgment, leave to appeal would be required, but the importance of the issue would appear to tell strongly in favour of a grant of leave. In particular, it is clear that the decision is not limited to comments posted on the Facebook pages of media companies. To the extent that Justice Rothman’s ultimate finding was based on the fact that the media companies encouraged Facebook comments for their own commercial interests, that finding would apply to any business using Facebook for promotion.
Of course, the fact that businesses can be liable for statements posted by customers (or other people external to the business) on the business’ Facebook page is not new. In 2011, the Federal Court of Australia considered the identity of “publisher” of Facebook and Twitter posts in the context of considering whether a company called Allergy Pathway had breached prior orders of the Court which prevented the company from making misleading statements. Although the Facebook and Twitter posts had apparently been posted by customers of Allergy Pathway, the Federal Court found that because Allergy Pathway had knowledge of the posts, and also the ability to remove the posts, Allergy Pathway had “published” the posts (even if it had not authored them).
To that extent, the Voller decision simply extends liability for publication from posts made by others (as considered in the Allergy Pathway case) to comments made by others as well. However as comments are likely to be vastly more numerous than posts (the evidence of Fairfax in the proceedings was that each Facebook post “can receive anywhere from 100 comments to thousands of comments, which can be posted at any time during the day or night”) the scope of liability is, accordingly, vastly increased.
The lesson in all of this is that laws which apply to publishers (which include not just the defamation or misleading and deceptive conduct examples discussed here, but also intellectual property laws and anti-discrimination laws) apply just as much on the Internet, and just as much on social media platforms, as they do to traditional publications.
If a business is using social media for promotion, then that business is in the business of publishing, and if that business does not know much about the law of publishing, they should make it their business to find out. Although in some cases liability can be avoided if a publisher “does not know, and could not with the exercise of reasonable diligence have known” of defamatory publication, the need for “reasonable diligence” means that ignorance is much more likely to be expensive than it is to be bliss.
Perhaps the last word in all of this belongs to Henri de Toulouse-Lautrec, who is reported to have said, “I paint things as they are. I don’t comment. I record.” Would sticking to painting, rather than posting on social media, be a good approach to managing liability? For present purposes, the best answer to that question is probably a firm, “no comment”.
For more on our social media law capabilities, contact Angus Macinnis
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