Liability of administrators of social media pages for defamatory comments or posts made by its members

If you post content on a social media page you administrate, and allow comments or third-party party posts, and those posts are defamatory, you might be held liable as the “publishers” of those defamatory comments or posts.

The High Court decision of Fairfax Media Publications Pty Ltd v Voller Nationwide News Pty Limited v Voller Australian News Channel Pty Ltd v Voller [2021] HCA 27 (‘Voller’) confirms that administrators of Facebook pages may be considered the ‘publishers’ of posts made by its members and therefore may be held personally liable for any defamatory comments posted.

Background

Dylan Volley brought defamation proceedings in the NSW Supreme Court against the defendant media companies, being Fairfax Media, the Australian News Channel and Nationwide News, over comments made by Facebook users to articles posted on the Facebook pages of those respective media companies.

At first instance, the NSW Supreme Court – and then later the Court of Appeal – held that the media companies were liable for the comments made by the third parties on their Facebook pages. The media companies then appealed to the High Court, on the question of whether they were “publishers” of the comments.  The High Court found that they were publishers of the defamatory comments.

High Court decision

The media companies contended that to be considered a publisher, they must have known of and intended to convey the relevant defamatory matter.

The High Court held that the element of publication does not depend on knowledge of the defamatory matter or an intention to communicate it. Their Honours Justices Gageler and Gordon said the word ‘intentionally’ is “an intention to facilitate or provide a platform for communication of the allegedly defamatory matter” and beyond that, any further requirement of knowledge or intention is irrelevant.

According to the majority of the High Court, because the media companies facilitated and encouraged the comments, they assisted in their publication and therefore were held liable for the defamatory third-party comments posted on their pages.

Key implications

This ruling has broader implication for ordinary Australians who have their own social media account and allow others to post on their page or leave comments.

Numerous everyday Australians manage social media pages on platforms like Facebook and LinkedIn. These often encompass what one might consider “low-risk” pages, such as those created by unincorporated associations for their members. These include a wide variety of clubs, ranging from car and horse clubs to cooking groups and beyond.  However, beware.  Based on this ruling, these everyday Australians may be deemed “publishers”, and can thus be held accountable for defamation in Australia.