12 July 2019

Risks Associated with the Operation of Public Facebook Pages

Mark Jones
Mark Jones Litigation Lawyer

In the recent decision of the New South Wales Supreme Court in the matter of Voller -v- The Nationwide News and Others, some potentially serious ramifications have come to light for media companies and others who operate public Facebook pages.

Each of the media companies involved namely, The Australian, The Sydney Morning Herald, Sky News Australia, The Centralian Advocate and The Bolt Report published articles pertaining to Dylan Voller who came to public attention as a consequence of an ABC Four Corners program broadcast in July 2016. The said programme raised some significant issues in respect of Voller’s alleged mistreatment whilst in a Northern Territory youth detention facility.

Voller has instituted defamation proceedings against each of the above media organisations who published articles pertaining to him on their Facebook pages and invited public comment. It is understood that Voller has not instituted proceedings against any of the individuals responsible for the allegedly defamatory posts, just the media organisations that operated the relevant sites.

The Defendants have each sought to defend the claims on the basis of the defence of innocent dissemination under section 32 of the Defamation Act. As a preliminary matter, the court was asked to determine the separate question as to whether the Plaintiff had established one of the three vital elements of a defamation claim namely publication.

In his decision, Judge Rothman came to the view that the more fundamental issue for the court to consider was whether each of the Defendant media companies could be held liable for the defamatory comments posted on the relevant Facebook pages by third parties. In considering the matter his Honour found that best practice dictated that comments published on an open public Facebook page could be blocked or remain hidden until monitored and approved by the relevant Facebook administrator.

Further, he found that public Facebook pages administered by the Defendants were designed for the purposes of exciting comment and interest by members of the public and thereby optimising the number of persons who might subscribe to their media services and/or optimise advertising revenue.

Ultimately Judge Rothman came to the view that each of the media companies had made the decision to operate their public Facebook pages for their own “commercial ends”. In the judgement, the Judge observed that each of the Defendants had assumed the risks that comments posted on their respective webpages rendered them potentially liable to damages claims. In handing down his reasons for judgement he made the following observation namely:

“That risk may be ameliorated by the suggestion, given during the course of submissions and evidence, that all comments be hidden, in the manner described in these reasons for judgement” and “unhidden” after it has been monitored.

It seems inevitable that the Defendants will ultimately seek to appeal the court’s decision however when it is all boiled down the decision does seem to be consistent with long-established legal principles.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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