According to the recent case of Voller v Nationwide News Pty Ltd  NSWSC 766, the answer is potentially yes.
Dylan Voller was a former detainee of the Don Dale Detention Centre in the Northern Territory. He became well known after the Royal Commission into the Protection and Detention of Children in the Northern Territory which followed the airing of an ABC Four Corners program into youths in Northern Territory Detention Centres.
Various media companies reported on the initial investigation and the Royal Commission on their Facebook pages in 2016 and 2017. Mr Voller brought defamation proceedings against those media companies, Nationwide News, Fairfax Media and Australian News Channel (Sky News) resulting not from the articles themselves but rather, from comments left on their Facebook pages. Some of these comments included that Mr Voller:
- Was a violent rapist;
- Assaulted a Salvation Army officer; and
- The assault left the officer blind in one eye;
Who is a publisher and who published the material?
A publisher of material can be either a primary publisher or a secondary publisher. A primary publisher is essentially the original author with secondary publishers being “participants” in the publication, for example, those commenting on Facebook articles and posts.
The issue in this case was who is liable for the “publication” of the defamatory material. It was clear that the various media companies did not publish the comments. However, the critical issue for determination was whether each of these media companies should be held liable for comments made by third party users on their Facebook pages.
What arguments were raised?
Lawyers for Mr Voller argued that it was within the control of the various media companies to hide or remove the comments. Furthermore, that the companies did not monitor the comments.
Lawyers for the media companies argued the defence of “innocent dissemination”, that they did not publish the comments and therefore had no liability for them. Furthermore, that Mr Voller had not requested that the comments be removed.
The Court heard expert evidence regarding Facebook generally and the ability of Facebook page administrators to monitor comments including hiding and blocking comments or checking comments before they were released.
What was the outcome?
The Court held that each of the media companies were publishers and stated “…on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates. As a consequence of that classification, the defence of innocent dissemination would not arise…”
The basis for the decision was the Court’s determination that the media companies could monitor and delay publication of the comments before they were released to the general readership.
Rothman, J stated: “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”.
What lessons can be learned?
The risk is that if a user comments on a public Facebook page, it may be considered to be defamatory and as a result, the administrator of that Facebook page can be held liable.
Anyone operating a public Facebook page should accordingly take appropriate steps to monitor and moderate comments and delete where necessary.
If you have any issue or concern regarding defamation, contact the experienced defamation lawyers at Atkinson Vinden Lawyers today.