Protecting your business online: Lessons learnt
‘Intuition suggests that the remarkable features of the internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.
These were the remarks of Justice Kirby in High Court decisions of Dow Jones & Company Inc v Gutnick and are as true today as they were in 2002.
These comments were made before the introduction of the (Uniform) Defamation Act 2005 and three years before Facebook, Twitter or Instagram even existed.
Since then, social media and the use of the internet have evolved in a manner that neither the legislators nor Kirby J could have foreseen, allowing defamatory material to be published and accessed in unprecedented ways.
It was therefore unsurprising, and long overdue, when the first amendments to the Defamation Act came into effect on 1 July 2021. Subsequently, and unrelated to those amendments, the High Court has delivered two decisions relating to the issue of liability of publishers – in both instances involving online publications.
This article will address these Judgments and provide a timely reminder to business owners of their responsibility for protecting the reputation of others and their right to protect their own reputation online.
Fairfax Media Publications Pty Ltd v Voller  HCA 27
Voller concerned the Plaintiff, Dylan Voller. He argued that a number of media outlets (including Fairfax) who host Facebook pages were responsible for defamatory third party comments, posted by third party users, on those pages.
Rothman J at first instance dealt with the preliminary question of whether "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?"
Indispensable in determining this issue was the Court's understanding as to the involvement of the various players (third party users, hosts and Facebook) in the comments on these platforms. The Court found:
- Each media host published a link on its public Facebook page on which a story was introduced with an image, a headline and a comment. The link allowed people to access the full story.
- The host measured the number of visitors to its Facebook page and their website for the purpose of negotiating rates with advertisers.
- Facebook alerted the host each time a third party user commented or liked one of their publications.
- The Administrator of the host’s Facebook page had the ability to hide or delete comments. If a comment was hidden, it was only seen by the person who had written it, that person’s "friends" and the Administrator. It would then appears in grey so the person who wrote it was aware that it has been moderated. The Administrator could choose at a later time to make it visible. If it were deleted, then no one could see it.
- The host was able to interact with comments by liking, reacting, mentioning or sharing the third party user’s publication.
- The host could ban or block specific usernames, profanities or offensive words.
- Facebook could rank particular comments that are liked, shared or further commented on and give priority to that comment.
- Evidence was given that the Administrator of Fairfax's Facebook page posted approximately 50 comments a day and each post could receive anywhere from 100 to thousands of comments.
Rothman J found the media outlets to be primary publishers of the defamatory comments posted by the third party users. That decision was appealed to the Full Court where it was affirmed that the media outlets were publishers of the material.
The Full Court however, and importantly, did not make any finding as to whether the media outlets were primary or secondary publishers of the material and whether the defence of innocent dissemination was available to them, as the Full Court did not consider that issue formed part of the question posed of them. That point of law remains undetermined.
The Full Court's decision was appealed to the High Court. Kiefel CJ, Keane and Gleeson JJ formed the plurality in affirming the media outlets liable as publishers, and made the following comments (emphasis added):
'The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.
The primary judge found that over 15 million Australians are Facebook users. The appellants chose to operate public Facebook pages in order to engage commercially with that significant segment of the population ... Having regard to those findings, the appellants' attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.
In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.'
 Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd  NSWSC 766, 
 A full list of the factual conclusions regarding the operation of the Facebook pages is at para  of the judgment.
 Secondary publishers of defamatory material may rely on the common law or statutory defence of innocent dissemination where they prove they “neither knew, nor ought reasonably to have known, that the matter was defamatory”. The onus is on the secondary publisher to prove the defence and, where (and for as long as) the defence would otherwise apply (e.g. in the case of a search engine in respect of defamatory search results algorithmically generated) the secondary publisher will not be liable for any publication of such defamatory material until put on specific notice of it by the defamed person and given reasonable time to consider and remove it.
 Fairfax Media Publications Pty Ltd v Voller  HCA 27, para 
 ibid, 
 ibid, 
 ibid,