Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Tort law; defamation; publication of defamatory comments; liability of internet platform providers
Facts: Fairfax Media Publications (Fairfax) created and maintained a publicly accessible Facebook page containing links to news stories. Visitors to the page were able to post comments on the news stories, which could be viewed by other users of the page. Fairfax posted links to stories about Voller and some Facebook users posted comments in response. Voller claimed the comments were defamatory and brought an action for defamation against Fairfax, whom he claimed had ‘published’ the comments. Fairfax argued as that they were only the administrators of a public Facebook page they had not participated, or been instrumental, in publishing the comments.
Issue: Had Fairfax ‘published’ the comments within the meaning of defamation law?
Decision: The comments posted by Facebook users on the Fairfax page were ‘published’ by Fairfax.
Reason: The tort of defamation does not require proof of an intention to publish material which the defendant knows is defamatory. It only requires proof that the defendant intentionally published the material in question. A defendant publishes material if they are instrumental, or contribute to, its communication to third parties in a comprehensible form. The court said [at 32 and 55]:
[A] person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.
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.
Note: The provider of a search engine that, in response to a query by a searcher, merely provides hyperlinks to documents that contain defamatory material, does not participate in the publication of that material, even if the searcher clicks on the links provided.