HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJS236/2020
FAIRFAX MEDIA PUBLICATIONS PTY LTD APPELLANT
AND
DYLAN VOLLER RESPONDENT
S237/2020
NATIONWIDE NEWS PTY LIMITED APPELLANT
AND
DYLAN VOLLER RESPONDENT
S238/2020
AUSTRALIAN NEWS CHANNEL PTY LTD APPELLANT
AND
DYLAN VOLLER RESPONDENT
Fairfax Media Publications Pty Ltd v Voller
Nationwide News Pty Limited v Voller
Australian News Channel Pty Ltd v Voller[2021] HCA 27
Date of Hearing: 18 May 2021
Date of Judgment: 8 September 2021S236/2020, S237/2020 & S238/2020
ORDER
In each matter:
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
N J Young QC and P D Herzfeld SC with L E Barnett for the appellant in each matter (instructed by Ashurst)
P W J Gray SC with R W Potter SC and L A R Goodchild for the respondent in each matter (instructed by O'Brien Criminal and Civil Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fairfax Media Publications Pty Ltd v Voller
Nationwide News Pty Limited v Voller
Australian News Channel Pty Ltd v VollerDefamation – Publication – Where appellants were media companies – Where each appellant created, operated and maintained public Facebook page – Where each appellant created posts on Facebook page hyperlinking to news stories referring to respondent – Where third-party Facebook users left "comments" on appellants' posts – Where comments alleged to be defamatory of respondent – Whether appellants "publishers" of comments – Whether intention to communicate defamatory matter necessary for appellants to be publishers.
Words and phrases – "communication of defamatory matter to a third party", "defamation", "digital newspaper or broadcast", "encouraged and facilitated", "Facebook comments", "Facebook page", "innocent dissemination", "intention to publish defamatory matter", "internet platform providers", "participation", "participation in the process", "publication", "publisher", "rebuttable presumption of publication", "strict liability", "third party".
Defamation Act 2005 (NSW), s 7(2).
KIEFEL CJ, KEANE AND GLEESON JJ. The appellants, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, publish newspapers which circulate in New South Wales or operate television stations, or both. They each maintain a public Facebook page on which they post content relating to news stories and provide hyperlinks to those stories on their website. They invite comment on the posted content from members of the public who are Facebook users. Comments which are made appear on the Facebook page and are available to be seen by other Facebook users.
In each of the three proceedings brought in the Supreme Court of New South Wales, the respondent claimed that following the appellants posting about particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.
The parties agreed to the terms of a question concerning the issue of publication. The Supreme Court ordered that the question be decided separately from the balance of the proceedings[1]. The question was whether the respondent, the plaintiff in the proceedings, "has established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users". The appellants took the view that a negative answer to the separate question would result in dismissal of the proceedings.
[1]Uniform Civil Procedure Rules 2005 (NSW), r 28.2.
The primary judge (Rothman J) answered the separate question in the affirmative[2]. Each of the appeals from that decision was dismissed[3].
[2]Voller v Nationwide News Pty Ltd [2019] NSWSC 766.
[3]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700.
Background facts
The appellants each maintain a public Facebook page on terms of use agreed with Facebook. The page is used by each appellant to share content and connect with Facebook users. The page is publicly accessible to users, who are able to view and comment on content posted to that page.
The use by each appellant of their Facebook page usually involves the posting of a hyperlink to a news story, with a headline, a comment and an image. Clicking on the hyperlink takes the reader to the full story on an appellant's news website. Readers are invited, by options which appear under the post, to "Like", "Comment" on or "Share" the post. These options are standard features of a Facebook page. Comments which are made by users appear on the page and are available to be seen by all Facebook users who can see the page.
The Facebook page used by each appellant is managed by a Page administrator, the person or persons authorised by the appellant to administer it in accordance with Facebook's terms of use. There was evidence before the primary judge, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked. Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to "hide" most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook "friends". Hidden comments could then be individually assessed by an administrator. If sufficient staff were allocated to perform this task, comments could be monitored and un-hidden if approved by an administrator.
The primary judge found, as might be anticipated, that certain posts would be expected to draw adverse comments about the person who was the subject of the news story. It was not in dispute that the use of a Facebook page encourages and facilitates visits by third-party users to a media outlet's own website. The number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and the revenue from advertising on both the page and the digital newspaper or broadcast.
The Defamation Act 2005 (NSW)
Section 6 of the Defamation Act 2005 (NSW) states the subject matter of the Act to relate to "the tort of defamation at general law". It provides that the Act "does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)".
Provisions of the Act refer to the "publication of defamatory matter"[4]. "Matter" is relevantly defined[5] to include an article, report or other thing communicated by means of a newspaper and a report or other thing communicated by means of television, the internet or any other form of electronic communication. The Act does not define what is meant by the "publication" of defamatory matter. Resort is necessary to the general law in that regard.
[4]See, for example, s 8, s 32.
[5]s 4.
The Defamation Act makes provision, in s 32, for a defence of innocent dissemination. A defence of this kind has its origins in the common law. No question as to the availability of the statutory defence arises with respect to the answer to the separate question. Nevertheless, the appellants refer to the cases which developed the defence at common law and later observations about those cases. The appellants submit that the cases illuminate what it means to be a publisher.
The argument and decision below
The appellants argued their cases in the Court of Appeal on the basis that, to be publishers, they must have been instrumental to, or a participant in, the communication of the alleged defamatory matter. This was a correct approach and followed the meaning of publication given in Webb v Bloch[6], to which reference is made later in these reasons.
[6](1928) 41 CLR 331 at 363-364.
The appellants argued that they did not make the defamatory comments available to the public, did not participate in their publication and were not in any relevant sense instrumental in their publication[7]; they merely administered a public Facebook page on which third parties published material. They submitted to the Court of Appeal that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.
[7]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 [45].
Reliance was also placed by the appellants on cases which involved actions brought against owners or occupiers of premises in which unauthorised third parties affixed defamatory statements on the wall of a premises[8] or scrawled them as graffiti on the walls of a structure[9]. In cases of this kind the occupier has been regarded by the courts as a publisher only if, after becoming aware of the statements, the occupier allowed them to remain in place and the circumstances justified an inference that they had accepted responsibility for the continuing publication of the statement by adopting or ratifying it.
[8]Byrne v Deane [1937] 1 KB 818.
[9]Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127.
In a case to which reference was made in the judgments in the Court of Appeal[10] it had been held that internet platform providers which hosted a discussion forum were in a different position from the occupiers referred to in those cases. Unlike the occupiers, the providers had encouraged and facilitated postings by members of the forum and were therefore held to be participants in their publication from the outset[11].
[10]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366.
[11]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 387 [51]-[52].
Basten JA accepted that the appellants played no such active role, distinguishing them from the internet platform providers in that case, but nevertheless considered the appellants to be publishers, as did Meagher JA and Simpson A-JA[12]. Each of their Honours pointed to the appellants having facilitated the making of comments by third parties which then became available to others. Meagher JA and Simpson A-JA pointed out that the appellants invited and encouraged comments from Facebook users and provided the vehicle for publication to those who might avail themselves of it. Their Honours upheld the primary judge's answer to the separate question, that the plaintiff had established the element of publication.
[12]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 712 [47], 724-725 [108]-[110].
After finding the appellants were publishers, the primary judge went on to consider aspects of the defence of innocent dissemination under s 32 of the Defamation Act. But as the appellants pointed out in the Court of Appeal, that issue did not arise in relation to the separate question. There was some discussion in the judgments in the Court of Appeal as to whether the cases which developed the defence at common law hold that if the defence is made out there is taken to have been no publication by a defendant[13]. But as Meagher JA and Simpson A-JA observed[14], such a question was not relevant because the appellants placed no reliance on the "never published" principle. It will be observed that the position of the appellants has now changed.
[13]Including by reference to Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288 and Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 585-586.
[14]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 721 [93].
The appellants' contentions
The appellants now contend that the common law requires that the publication of defamatory matter be intentional. It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words. This is said to follow from what was said by Isaacs J in Webb v Bloch[15] and to accord with the holding in Trkulja v Google LLC[16], that Google's intentional participation in the communication of the defamatory matter supported a finding of publication.
[15](1928) 41 CLR 331 at 363-364.
[16](2018) 263 CLR 149 at 163 [38].
As mentioned earlier in these reasons, the appellants do not rely on the statutory defence of innocent dissemination as providing an answer to whether they are publishers of the alleged defamatory material. However, they submit that the cases which concern the common law defence of innocent dissemination, commencing with Emmens v Pottle[17], support a requirement of intention to publish defamatory matter. They submit that the cases show that publication is more than mere dissemination. Publication is dissemination with an element of intention.
[17](1885) 16 QBD 354.
The approach of the courts in these cases, the appellants say, is not to regard publication as having occurred and then excuse the defendant from liability if the defence is made out. It is to allow the defendant to demonstrate that there was no publication. The cases treat publication as an evidentiary presumption which is rebuttable on proof of the requirements of the defence, relevantly a lack of knowledge that the matter being communicated is defamatory or a lack of intention to communicate it.
A focus on the intention of a putative publisher to communicate the matter complained of is also said to explain the cases concerning whether occupiers are publishers of defamatory statements affixed to their premises or structures by unauthorised third parties, the appellants contend. These cases hold that, to be a publisher, an occupier must have consented to, approved of, adopted or promoted the continued presence of the statements, such that it can be said the occupier accepted responsibility for their presence. The question of publication is therefore determined by the courts by drawing an inference that the occupier intends to communicate the matter, the appellants contend. No such deliberate act is present in these appeals which would permit an inference of intention on the part of the appellants to be drawn, it is submitted.
The appellants' contentions are not supported by authority and cannot be accepted.
Publication and intention
In the law of defamation, harm is understood to be occasioned to a person's reputation when a defamatory publication is made to a third party. Publication is the actionable wrong. In Dow Jones & Co Inc v Gutnick[18], publication was described as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension. Publication may therefore be understood as the process by which a defamatory statement or imputation is conveyed[19].
[18](2002) 210 CLR 575 at 600 [26].
[19]Rolph, Defamation Law (2016) at 140 [8.20].
In Trkulja v Google LLC[20], it was said that "[i]n point of principle, the law as to publication is tolerably clear". The judgment of Isaacs J in Webb v Bloch[21] was cited for that proposition. In that case, Isaacs J drew upon texts to identify who may be a publisher. Folkard[22] described the word "published" as a technical term in the law of libel. It is used, he said:
"without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him".
[20](2018) 263 CLR 149 at 163 [39].
[21](1928) 41 CLR 331 at 363-364.
[22]Folkard, The Law of Slander and Libel, 5th ed (1891) at 439 (emphasis added by Isaacs J).
Starkie[23] said that all persons who:
"are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication".
[23]Starkie, A Treatise on the Law of Slander and Libel, 2nd ed (1830), vol II at 225 (emphasis added by Isaacs J).
Part of the quotation from Folkard ("has intentionally lent his assistance to its existence for the purpose of being published") is relied on by the appellants as supporting their argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. The argument is inconsistent with the common law rule relating to publication and, as shall be explained, it derives no support from what was said in Webb v Bloch.
An action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care[24]. The intention of the author of the defamatory matter is not relevant[25] because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher's liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.
[24]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [25], referring to Lee v Wilson & Mackinnon (1934) 51 CLR 276.
[25]Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 287 per Dixon J.
The liability of a person as a publisher "depends upon mere communication of the defamatory matter to a third person", Dixon J said[26] in Lee v Wilson & Mackinnon. No question as to the knowledge or intention of the publisher arises. His Honour said "[t]he communication may be quite unintentional, and the publisher may be unaware of the defamatory matter", but the person communicating the defamatory matter will nevertheless be liable. The exception identified by his Honour was the case of certain booksellers, news vendors and messengers, to which reference will later be made.
[26](1934) 51 CLR 276 at 288.
The appellants' argument that a person must intend to publish the defamatory matter gains no support from what was said in Trkulja v Google LLC[27]. On an application for summary dismissal of the plaintiff's claim of defamation, the primary judge had held that it was strongly arguable that Google's "intentional participation" in the communication of the alleged defamatory material to users of the Google search engine supported a finding that Google was a publisher[28].
[27](2018) 263 CLR 149 at 163 [38].
[28](2018) 263 CLR 149 at 158 [25].
This Court upheld that finding, but criticised the intermediate appellate court for proceeding to make a determinative finding as to publication[29]. The issue concerning publication required consideration of "the nature and extent of Google's involvement in the compilation and publication of its search engine results", the Court said, and this could not be known with any certainty until after discovery[30]. Adopting the quotation in Webb v Bloch from Folkard, the Court said that "all degrees of participation in the publication" of defamatory matter are publication[31]. Far from supporting the appellants' argument as to intention, Trkulja v Google LLC confirms that the correct meaning of publication, which was given in Webb v Bloch, is that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.
[29](2018) 263 CLR 149 at 163 [38].
[30](2018) 263 CLR 149 at 164 [39].
[31](2018) 263 CLR 149 at 164 [40].
Putting to one side the exception created by the defence of innocent dissemination, the publication rule has always been understood to have a very wide operation. In Crookes v Newton[32], a decision of the Supreme Court of Canada, Abella J remarked that "the breadth of activity captured by the traditional publication rule is vast". Her Honour gave as an example a case in which a printer's employee, whose only role in a publication was to "clap down" the printing press, was held liable for the libels contained in the publication even though he was unaware of its contents[33].
[32][2011] 3 SCR 269 at 281-282 [18].
[33]R v Clerk (1728) 1 Barn KB 304 [94 ER 207].
Consistently with Trkulja v Google LLC and the publication rule, Webb v Bloch is to be understood to say that 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.
True it is that that part of the quotation from Folkard on which the appellants rely ("has intentionally lent his assistance to its existence for the purpose of being published") refers to something other than a publication by distribution. That circumstance was apposite to the facts in Webb v Bloch and the issue with which Isaacs J was dealing in the passages which preceded his discussion about publication. In Webb v Bloch, the solicitor enlisted by the defendants both composed the defamatory circular "for the purpose of publication" and subsequently "consciously distributed it", Isaacs J found[34]. The latter finding points to the fact that it is the defendant's act of participation in publication which must be intentional, in the sense of being voluntary.
[34](1928) 41 CLR 331 at 363.
Because the solicitor had participated from the outset, his publication of the libel was found by Isaacs J[35] not to consist merely in the distribution of the circular which contained the libel. The conclusion which was then available was that the solicitor was not a subordinate, but rather a primary, publisher for the purposes of the defence of innocent dissemination.
[35](1928) 41 CLR 331 at 363.
Isaacs J in Webb v Bloch may be understood to acknowledge that publication may involve acts of participation other than, and which may precede, the actual physical distribution of the defamatory material. His Honour is not to be understood to say that a person must intend to communicate the material complained of as defamatory in order to be a publisher.
Innocent dissemination
As Ribeiro PJ observed in Oriental Press Group Ltd v Fevaworks Solutions Ltd[36], "[t]he strictness of the publication rule plainly called for some relaxation". Emmens v Pottle[37] is generally taken as the starting point of what came to be called the common law defence of innocent dissemination, which was developed by the courts to mitigate the harshness of the law relating to publication. Vizetelly v Mudie's Select Library Ltd[38] took up the new "doctrine"[39].
[36](2013) 16 HKCFAR 366 at 379 [24].
[37](1885) 16 QBD 354.
[38][1900] 2 QB 170.
[39][1900] 2 QB 170 at 175 per A L Smith LJ.
Emmens v Pottle concerned persons in the business of selling newspapers. Lord Esher held[40] that although such a person may be prima facie liable as a publisher, if they are able to show that they did not know that the newspaper was likely to contain a libel and their lack of knowledge was not the result of their own negligence they will not be liable for the libel[41].
[40](1885) 16 QBD 354 at 356-357, Cotton LJ concurring. See also Bowen LJ at 358.
[41](1885) 16 QBD 354 at 357.
Vizetelly involved a circulating library. The "defence" also came to extend to persons who conducted the business of bookseller or messenger[42]. What they had in common was that they were mere distributors or disseminators. They were lesser or subordinate publishers, not primary publishers. The latter could not take advantage of the defence. The defence could be described as one special to distributors[43].
[42]See Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288 per Dixon J.
[43]Gatley on Libel and Slander, 12th ed (2013) at 227 [6.30].
The defence cannot be said to be rooted in principle. In Thompson v Australian Capital Television Pty Ltd[44], its origins were described as "muddied". The decision in Emmens v Pottle has been described as more pragmatic than principled[45]. Lord Esher appears to have been motivated by a concern that the common law would appear to be unjust and unreasonable if some such accommodation was not made by the courts. In Thompson[46], it was said that his Lordship "rationalised rather than explained the decision".
[44](1996) 186 CLR 574 at 586 per Brennan CJ, Dawson and Toohey JJ.
[45]Rolph, Defamation Law (2016) at 292 [14.20].
[46](1996) 186 CLR 574 at 585 per Brennan CJ, Dawson and Toohey JJ.
The appellants' argument that Emmens v Pottle and later cases treat publication as a mere rebuttable presumption relies on statements in Emmens v Pottle and Vizetelly concerning the relevant defendant's liability for publication. In Emmens v Pottle[47], Lord Esher observed that the defendants were "primâ facie liable" because "[t]hey have handed to other people a newspaper in which there is a libel on the plaintiff". In Vizetelly, A L Smith LJ[48] said that, the defendants having lent and sold copies of the book, "primâ facie they published it".
[47](1885) 16 QBD 354 at 356-357.
[48][1900] 2 QB 170 at 175.
These statements most clearly acknowledge the strictness of the publication rule in its operation. It is difficult to accept that by these words their Lordships intended to convert the rule to a rebuttable presumption of publication. Indeed the rule has continued to be regarded as operating strictly with respect to other publishers. The statements are better understood to say that but for the "defence" which the courts will now afford distributors, they would be liable as publishers. In Vizetelly[49], A L Smith LJ, having observed that the defendants were "primâ facie" publishers, enquired "[w]hat defence, then, have they?" and answered "[n]one, unless they can bring themselves within the doctrine of Emmens v Pottle".
[49][1900] 2 QB 170 at 175.
The appellants also rely on what was said in the cases as to what followed where the defence was made out. In Emmens v Pottle[50], Lord Esher said that if the defendants proved the necessary facts, namely lack of knowledge and absence of negligence, a conclusion might be reached that the defendants "did not publish the libel". His Lordship appears also to have distinguished the defendants as mere "disseminators" who were innocent, in contradistinction to authors or other primary publishers.
[50](1885) 16 QBD 354 at 357.
In Vizetelly[51], Romer LJ did not suggest that the defence resulted in there being no publication in fact or law. His Lordship said that on proof of no knowledge and negligence a defendant may "be held not to have published" the libel. This might suggest that the court would deem a defendant not to be a publisher and, by that means, absolve them from liability. Recent decisions in the courts of the United Kingdom appear to have proceeded on this basis[52].
[51][1900] 2 QB 170 at 180.
[52]Bunt v Tilley [2007] 1 WLR 1243 at 1252 [36]; [2006] 3 All ER 336 at 345; Tamiz v Google Inc [2013] 1 WLR 2151 at 2162 [26].
It may be accepted that if a plea by a defendant of "no publication" were established, a plaintiff would fail to establish a cause of action[53]. However, in contending for the conclusion that there was no publication, the appellants do not rely upon the "defence" as explaining this result. No mention of a "defence" was made in the judgments in Emmens v Pottle. The word has a number of meanings. It may simply mean the answer given to the plaintiff's claim, as the appellants point out. It is therefore unnecessary to consider historical questions of procedure further.
[53]Rolph, Defamation Law (2016) at 292 [14.20].
The appellants rely on the apparent acceptance by Dixon J in Lee v Wilson & Mackinnon[54] that the result of establishing the defence is that there is no publication. His Honour did not refer to Emmens v Pottle or to Vizetelly, but was no doubt conscious of them. He said that in cases involving booksellers, news vendors and the like, who neither know nor suspect the defamatory content, what would otherwise be publication "does not amount to publication of a libel". It must be accepted that his Honour repeated what had been said in the early cases. It is also necessary to observe that there was no issue in Lee v Wilson & Mackinnon as to the correctness of the statements in the early cases.
[54](1934) 51 CLR 276 at 288.
The appellants also point to the repetition of Dixon J's words in a passage in the joint judgment in Dow Jones & Co Inc v Gutnick[55]. It needs to be borne in mind that that case involved choice of law considerations referable to the act of publication of a defamation. Their Honours stated in general terms how the tort of defamation is understood in Australia to make the point that a defendant needs to be able to identify by what law publication may be judged. Their Honours were not concerned with whether the effect of the defence of innocent dissemination might be stated more accurately. And their Honours did not refer in that passage to the earlier decision of this Court in Thompson[56].
[55](2002) 210 CLR 575 at 600 [25] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[56](1996) 186 CLR 574.
In Thompson[57], Brennan CJ, Dawson and Toohey JJ observed that the plea of "never published" has introduced a "measure of confusion". Their Honours then referred, with apparent approval, to what the authors of Duncan and Neill on Defamation had said[58]:
"It is submitted that it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication."
[57](1996) 186 CLR 574 at 586, referring to Gatley on Libel and Slander, 8th ed (1981) at 113, fn 3.
[58]Duncan and Neill on Defamation, 2nd ed (1983) at 110, fn 3.
Gummow J[59], dealing with what his Honour described as the "so‑called" defence, approved the statement of Sir Frederick Pollock[60] that a person "is free from liability if he proves his ignorance".
[59]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 618-619.
[60]Pollock's Law of Torts, 15th ed (1951) at 186.
The views expressed by their Honours should be accepted as the explanation of what a successful "defence" of innocent dissemination achieves. It is not that publication is to be taken not to have occurred. In providing for the defence, the courts are to be understood simply to except from liability a defendant who would otherwise have been liable as a publisher. Such an approach was followed by the Hong Kong Court of Final Appeal in Oriental Press[61]. It accords with the fact that the common law continues to apply the rule of publication for publishers, other than innocent distributors or disseminators, who are not primary publishers.
[61](2013) 16 HKCFAR 366 at 381 [31] per Ribeiro PJ (Ma CJ, Chan PJ and Gleeson NPJ agreeing), 409 [123], 410-411 [127], 412 [132] per Litton NPJ.
Byrne v Deane
The other line of cases upon which the appellants rely commences with Byrne v Deane[62]. The appellants seek to draw from cases of this kind that an occupier may become liable as a publisher of a defamatory statement affixed to their premises if it may be inferred that they intended the publication to continue. Such an inference may be drawn where an occupier has consented to, adopted or approved the continuance of the publication.
[62][1937] 1 KB 818.
Byrne v Deane[63] concerned the placing of an alleged defamatory verse on the wall of a golf club. The rules of the club required the consent of the Secretary to the posting of any notice in the club premises. The words were held to be incapable of a defamatory meaning. Nevertheless, some attention was directed by the Court of Appeal to the issue of publication.
[63][1937] 1 KB 818.
As Greene LJ pointed out[64], publication is a question of fact which depends upon the circumstances of each case. A failure to remove defamatory material might amount to publication in some circumstances but not in others. Slesser LJ pointed to cases[65] where persons who had taken no overt part in the publication of defamatory matter nevertheless adopted and promoted its reading so as to render themselves liable for its publication.
[64][1937] 1 KB 818 at 837-838.
[65]Such as Hird v Wood (1894) 38 Sol J 234: see [1937] 1 KB 818 at 834-835.
Greer and Greene LJJ considered that there was evidence which tended to show that the actions of both defendants, as directors of the golf club, fell into this latter category. By electing to leave the alleged libel on the wall of the club, having had the power to remove it, they were taken to have consented to its continued publication to each member who saw it[66]. Slesser LJ on the other hand considered that the evidence only tended to show that the Secretary, by failing to exercise her specific powers under the club rules, had promoted and associated herself with the continuance of the publication[67].
[66][1937] 1 KB 818 at 830 per Greer LJ, 838 per Greene LJ.
[67][1937] 1 KB 818 at 835.
Cases such as Byrne v Deane[68] do not establish a different rule for publication, one based upon the intention of occupiers, as the appellants contend. They involve the application of the general rule of publication to a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher. The time when the occupier becomes aware of the publication of the material marks the point from which the occupier's conduct or inaction is assessed to determine whether they can be said to have participated in the continuing publication. Cases of this kind are not useful to explain the involvement of others in publications in very different circumstances[69] and are not of assistance in this case.
[68]See also Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127.
[69]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 (internet platform providers); Murray v Wishart [2014] 3 NZLR 722 (hosts of a Facebook page).
Conclusion and orders
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 appeals should be dismissed with costs.
GAGELER AND GORDON JJ. The law of defamation in Australia illustrates the observation of Gleeson CJ in Brodie v Singleton Shire Council[70] that:
"Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship."
The two sources of law have been intertwined since the Slander and Libel Act 1847 (NSW) first abolished the common law distinction between libel and slander in New South Wales. They became more intertwined with the enactment of the Defamation Act 2005 (NSW) and legislation in substantially identical form in each other State and Territory[71]. That nationally uniform legislation is expressed "not [to] affect the operation of the general law in relation to the tort of defamation except to the extent that [it] provides otherwise"[72] and to have as an object "to promote uniform laws of defamation in Australia"[73]. A task of the integrated Australian judiciary is to ensure that the nationally uniform statute law of defamation and the nationally uniform common law of defamation fit into a "coherent and interlocking whole"[74].
[70](2001) 206 CLR 512 at 532 [31].
[71]Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA); Defamation Act 2006 (NT); Civil Law(Wrongs)Act 2002 (ACT), Ch 9.
[72]See eg, s 6(2) of the Defamation Act 2005 (NSW).
[73]See eg, Preamble to, and s 3(a) of, the Defamation Act 2005 (NSW).
[74]cf Leeming, The Statutory Foundations of Negligence (2019) at 1, quoting Moses and Edgeworth, "Taking it Personally: Ebb and Flow in the Torrens System's In Personam Exception to Indefeasibility" (2013) 35 Sydney Law Review 107 at 111.
Subject to a range of potentially applicable statutory and common law defences, the tort of defamation is committed in Australia upon "the publication of defamatory matter of any kind"[75]. "Matter" is legislatively defined to include "a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication"[76]. "Publication" is left to have its meaning at common law.
[75]See eg, s 7(2) of the Defamation Act 2005 (NSW).
[76]See eg, s 4 of the Defamation Act 2005 (NSW).
We agree with Kiefel CJ, Keane and Gleeson JJ that the Court of Appeal of the Supreme Court of New South Wales (Basten and Meagher JJA and Simpson A‑JA)[77] properly concluded that the primary judge (Rothman J)[78] was right to answer questions reserved in defamation proceedings brought by the respondent to the effect that the appellant media companies were the publishers at common law of third-party comments posted on their public Facebook pages. To their Honours' reasons, we add the following observations.
[77]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700.
[78]Voller v Nationwide News Pty Ltd [2019] NSWSC 766.
Publication and publishers at common law
Put succinctly by Cardozo CJ[79]:
"In the law of defamation, 'publication' is a term of art ... A defamatory writing is not published if it is read by no one but the one defamed. Published, it is, however, as soon as read by any one else."
[79]Ostrowe v Lee (1931) 175 NE 505 at 505.
Publication for the purpose of the tort of defamation has been emphasised in Australia to be "a bilateral act – in which the publisher makes [matter] available and a third party has [that matter] available for his or her comprehension"[80]. Publication of matter by means of the Internet is accordingly complete when and where the matter is accessed by a third party in a comprehensible form.
[80]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [26].
Adopted in Australia in the decision of this Court in Webb v Bloch[81], and reconfirmed by the decision of this Court in Trkulja v Google LLC[82], has been the long-standing rule of the common law that every intentional participant in a process directed to making matter available for comprehension by a third party is a "publisher" of the matter upon the matter becoming available to be comprehended by the third party. The rule was captured in the reasons for judgment of Isaacs J in Webb v Bloch through the combination of two quotations from a specialist textbook, drawing on English case law stretching back to the Jacobean period.
[81](1928) 41 CLR 331 at 363-364.
[82](2018) 263 CLR 149 at 164-165 [40].
One of the quotations was from a chapter dealing with publication of a criminal libel in an early edition of the textbook, published in 1830[83]:
"According to the general rule of law, it is clear that all who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter, in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication, when it has been so effected."
[83]Starkie, A Treatise on the Law of Slander and Libel, 2nd ed (1830), vol II at 225, quoted in part in argument in Parkes v Prescott (1869) LR 4 Ex 169 at 173-174.
The other of the quotations was from a chapter dealing with publication of a civil libel in a revised edition of the textbook, published in 1891[84]:
"The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him".
[84]Folkard, The Law of Slander and Libel, 5th ed (1891) at 439 (emphasis in original).
In the form stated in the first quotation[85], the rule might well have been explained as nothing more than a manifestation of the general rule of the common law that a secondary participant in a misdemeanour was liable as a principal given the refusal of the common law to "distinguish the different shades of guilt in petty misdemeanours"[86]. In the form stated in the second quotation, however, the rule is appropriately identified as an exposition of the technical content of "publication" when used as a term of art to express an element of the tort of defamation.
[85]See also Folkard, The Law of Slander and Libel, 5th ed (1891) at 796.
[86]Blackstone, Commentaries on the Laws of England (1769), bk 4, ch 3 at 36. See generally Giorgianni v The Queen (1985) 156 CLR 473 at 480-481, 490-493.
The word "intentionally" within the second quotation should be understood to be directed at an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter. Enough for participation in a process that is in fact directed to making matter available for comprehension by a third party to be characterised as intentional is that the participation in the process is active and voluntary. That is irrespective of the degree of active and voluntary participation in the process. And it is irrespective of knowledge or intention on the part of the participant as to the defamatory content of the matter published.
As Dixon J said in Lee v Wilson & Mackinnon[87]:
"The cause of action consists in publication of the defamatory matter of and concerning the plaintiff. It might be thought, therefore, that, in any event, this warranted or required some investigation of the actual intention of the publisher. But his liability depends upon mere communication of the defamatory matter to a third person. The communication [of the defamatory matter] may be quite unintentional, and the publisher may be unaware of the defamatory matter."
[87](1934) 51 CLR 276 at 288 (emphasis added).
Adapting and adopting what was said with reference to Webb v Bloch in the Court of Final Appeal of Hong Kong in Oriental Press Group Ltd v Fevaworks Solutions Ltd[88] by Ribeiro PJ (with whom other members of the Court including Gleeson NPJ agreed), a person is a publisher of defamatory matter if "by an act of any description" the person "intentionally assisted in the process" of communicating the matter containing content conveying the defamatory imputation to a third party, regardless of whether the person knows that the matter contains that content.
[88](2013) 16 HKCFAR 366 at 377 [19].
The strictness of the common law rule is illustrated by Webb v Bloch itself. There members of a committee who ratified a decision of another member to instruct a solicitor to prepare and send a circular were found each to have been a publisher of the circular prepared and sent out by the solicitor. That was despite some of them having been completely unaware of the contents of the circular.
Consistent with the strictness of the common law rule, as was observed in the Supreme Court of Canada in Crookes v Newton[89] by Abella J (with whom five other Justices concurred), "the breadth of activity captured by the traditional publication rule is vast". The breadth of the activity is perhaps best illustrated by reference to a series of early eighteenth century English cases, the reports of which were noted in both editions of the textbook[90] referred to in Webb v Bloch[91], and one of which was singled out for mention by Abella J[92]. The cases concerned prosecutions for treasonable libel arising out of the publication in Mist's Weekly Journal of "The Persian Letter", in respect of which "it was shewn by proper averments and innuendos, that in a pretended piece of Persian history the king and several other members of the royal family had been libelled"[93]. The prosecutions were tried before Raymond CJ in the Court of King's Bench. Convicted as a publisher was a servant to the printer, whose only involvement was to "clap down the press" with "few or no circumstances [being] offered of his knowing the import of the paper"[94]. Convicted of printing, and escaping liability as a publisher only by reason of lack of evidence of publication of the pages printed, was a servant whose job as a compositor was limited to setting the type for printing the words in one of two columns on each page, another servant having the responsibility for setting the type for printing the words in the other column[95]. Escaping conviction altogether, but only through the merciful intransigence of the jury and the eventual capitulation of the Attorney-General, was the keeper of a "pamphlet shop" who lived more than a mile away and who had been bedridden for some time[96]. In response to a submission by her counsel that not "all those, through whose hands a libel goes, are publishers of it", Raymond CJ observed "that if a servant carries a libel for his master, he certainly is answerable for what he does, though he cannot so much as write or read"[97].
[89][2011] 3 SCR 269 at 281-282 [18].
[90]Starkie, A Treatise on the Law of Slander and Libel, 2nd ed (1830), vol II at 188, 237-238, 341; Folkard, The Law of Slander and Libel, 5th ed (1891) at 830-831.
[91](1928) 41 CLR 331 at 363-364.
[92][2011] 3 SCR 269 at 282 [18].
[93]Starkie, A Treatise on the Law of Slander and Libel, 2nd ed (1830), vol I at 419.
[94]R v Clerk (1728) 1 Barn KB 304 [94 ER 207].
[95]R v Knell (1728) 1 Barn KB 305 [94 ER 207].
[96]R v Nutt (1728) 1 Barn KB 306 [94 ER 208].
[97]R v Nutt (1728) 1 Barn KB 306 at 306-307 [94 ER 208 at 208].
Formulated in the age of print, the common law rule was not seen to require modification in order to deal with the advent of the telegraph or the telephone. When, in the late nineteenth century, an operator employed by a telegraph company at one place transmitted a customer's message to an operator employed by the same telegraph company at another place who then reduced the message to writing and delivered the message in print to the addressee, the telegraph company was as much a publisher of the printed message as was the customer[98]. When, in the late twentieth century, one person communicated with another by telephone, the telephone company was not a publisher. The difference was that "a telegram [was] sent only through the direct participation of agents of the telegraph company whereas in the case of a modern-day telephone call the caller communicate[d] directly with the listener over the facilities of the telephone company, with no publication by the company itself"[99].
[98]eg, Lewis, Gatley on Libel and Slander, 8th ed (1981) at 104 [226], citing Peterson v Western Union Telegraph Co (1898) 71 Am St R 461.
[99]Lunney v Prodigy Services Company (1998) 250 AD 2d 230 at 235 (cleaned up quote), referring to Anderson v New York Telephone Company (1974) 35 NY 2d 746.
Nor was the common law seen to require modification in order to deal with the advent of radio and television. Radio and television broadcasters were readily seen to be publishers of "all material broadcast or televised on [their] network, whether scripted or live" so as to be liable for defamatory matter contained in "a derogatory remark made by a contributor to a live studio discussion, or a banner or leaflet thrust before a television camera in a live transmission of a political meeting or demonstration". Not "to the point" was that the broadcaster "[did] not itself make or adopt the defamatory statements": "by its broadcast it [had] published them"[100].
[100]Mullis and Parkes (eds), Gatley on Libel and Slander, 12th ed (2013) at 216-217 [6.24], quoting United Kingdom, Report of the Committee on Defamation (1975) Cmnd 5909 at 82 [298].
Accordingly, in Thompson v Australian Capital Television Pty Ltd[101], a television station which broadcast live to viewers in the Australian Capital Territory a current affairs program produced by another television station in Sydney was not doubted to be a publisher of defamatory statements made during a live interview on the program. The only relevant issue was whether it was entitled to the common law "defence" of "innocent dissemination" associated with Emmens v Pottle[102]: it was not.
[101](1996) 186 CLR 574.
[102](1885) 16 QBD 354.
Accepted by at least a majority in Thompson v Australian Capital Television Pty Ltd[103] was the proposition that innocent dissemination at common law constitutes a "defence" to an action in defamation, in the strictest sense of the meaning of "defence"[104] involving "confession" (meaning acceptance) of facts sufficient to establish the legal elements of the cause of action and "avoidance" (meaning negation or defeasance) of the legal effect of those facts upon proof of further facts establishing a justification or excuse, as distinct from involving the denial of facts sufficient to establish an element of the cause of action. Brennan CJ, Dawson and Toohey JJ, who constituted a majority, in that respect singled out for approval[105] a comment, contained in the then current edition of a leading English textbook[106], on the statement of Lord Esher MR in Emmens v Pottle that the innocent disseminators in that case "did not publish the libel"[107]. The comment was to the effect that "it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication".
[103](1996) 186 CLR 574.
[104]See Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 527-528 [8]; Perkins, Chitty's Treatise on Pleading, 16th American ed (1882), vol I at 551; Goudkamp, Tort Law Defences (2013) at 2-3.
[105](1996) 186 CLR 574 at 586.
[106]Duncan and Neill on Defamation, 2nd ed (1983) at 110, fn 3.
[107](1885) 16 QBD 354 at 357.
On the strength of Thompson v Australian Capital Television Pty Ltd, those drafting the Defamation Act and cognate legislation in other States and Territories proceeded on the understanding that an innocent disseminator is a publisher according to the common law of Australia[108]. In common law principle, not to mention on the authority of this Court, that understanding was fundamentally sound.
[108]See eg, New South Wales, Defamation Bill 2005, Explanatory Note at 15, cl 32; New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 at 17640.
Treating innocent dissemination as a defence to a cause of action in defamation rather than as a denial of the element of publication accords with the historical explanation of Emmens v Pottle given by Vaughan Williams LJ in Vizetelly v Mudie's Select Library Ltd[109], to which Gummow J drew attention in his separate reasons for judgment in Thompson v Australian Capital Television Pty Ltd[110].
[109][1900] 2 QB 170 at 178.
[110](1996) 186 CLR 574 at 619.
The explanation requires that Emmens v Pottle be understood against the background of the emergence of the tort of defamation out of the earlier action on the case for words over the course of the nineteenth century[111]. Only in the early twentieth century did the tort ultimately appear, from E Hulton & Co v Jones[112] as explained by Dixon J in Lee v Wilson & Mackinnon[113], as a "tort of strict liability"[114] (in the sense that neither an intention to do harm nor negligence resulting in harm is necessary for liability[115]) in which "liability depends upon mere communication of the defamatory matter to a third person" without need to "look for the publisher's actual intention" as to the meaning of the matter[116].
[111]See Mitchell, The Making of the Modern Law of Defamation (2005) at 101-144; Mitchell, A History of Tort Law 1900-1950 (2015) at 140-144.
[112][1910] AC 20.
[113](1934) 51 CLR 276 at 287-292.
[114]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [25].
[115]Benning v Wong (1969) 122 CLR 249 at 298-299.
[116](1934) 51 CLR 276 at 288.
Emmens v Pottle was decided at a stage in the evolution of the tort of defamation when the "gist" of a cause of action could still be said to be "malice" on the part of the defendant[117]. The typical pleading of an action in libel alleged that the defendant "falsely and maliciously printed and published of the plaintiff ... the words following ..."[118]. By that stage, however, "malice" had long since come to be understood not in the "popular sense" of meaning "ill will against a person" but in the "legal sense" of meaning "a wrongful act, done intentionally, without just cause or excuse"[119]. On the basis that a defendant who published defamatory matter "must be considered, in point of law, to have intended the consequences resulting from that act"[120], malice on the part of the defendant was presumed as a matter of law from the tendency in fact of the matter published to defame the plaintiff. The legal presumption of malice prevailed unless rebutted through the defendant establishing a justification or excuse for the publication.
[117]Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 767.
[118]Bullen and Leake's Precedents of Pleadings, 4th ed, Pt I (1882) at 390. See also Jones v E Hulton & Co [1909] 2 KB 444 at 458, 477; E Hulton & Co v Jones [1910] AC 20 at 24.
[119]Bromage v Prosser (1825) 4 B & C 247 at 255 [107 ER 1051 at 1054].
[120]Fisher v Clement (1830) 10 B & C 472 at 475 [109 ER 526 at 527]. See also Haire v Wilson (1829) 9 B & C 643 at 645 [109 ER 239 at 240].
The rules of pleading applicable to the proceeding in Emmens v Pottle discouraged a defendant to an action in libel from simply pleading "denial of the several acts (or matters) complained of" by the plaintiff. The pleading rules instead encouraged a defendant who sought "to deny the fact of publication or the alleged reference to the plaintiff, to plead those denials specifically". They also had the effect that "a defendant in pleading a defence of privilege or justification must in general set out the facts on which [the defendant] relies to show that the publication was privileged or justified"[121]. In Emmens v Pottle, the successful defendants took both of those pleading options: they denied publication and, "further and alternatively", they pleaded the facts ultimately held to have made them innocent disseminators. Those additionally pleaded facts were specifically found by a jury. Judgment was ordered to be entered for the defendants from which an appeal by the plaintiff in person was dismissed by the Court of Appeal for very brief reasons delivered extempore.
[121]Bullen and Leake's Precedents of Pleadings, 4th ed, Pt II (1888) at 370-371, fn (b).
The explanation of Emmens v Pottle given by Vaughan Williams LJ in Vizetelly v Mudie's Select Library Ltd is that the case is best understood as having been decided on the second of the pleaded grounds of the defence, not the first. What the case decided, so the explanation went, was that proof that a publication of defamatory matter occurred in circumstances of innocent dissemination, not unlike proof that a publication occurred in circumstances of qualified or absolute privilege, amounted to establishment by the defendant of a justification or excuse which operated to rebut the presumption of malice and thereby to negate the tortious liability of the defendant for the publication. Thus, it could be said, inelegantly but without logical contradiction, that what occurred in Emmens v Pottle was a publication of defamatory matter that was nevertheless an "innocent publication of defamatory matter" and which was for that reason "not a publication within the meaning of the law of libel"[122].
[122][1900] 2 QB 170 at 178.
The explanation accords with the report of the charge to the jury in Day v Bream[123], to which Romer LJ alluded in Vizetelly v Mudie's Select Library Ltd as a case of innocent dissemination[124]. There the defendant was the porter at a coach office who delivered parcels of handbills defamatory of the plaintiff. The report of the case records that the trial judge[125]:
"left it to the jury to say whether the defendant delivered the parcels in the course of his business without any knowledge of their contents; if so, to find for him, observing that prima facie he was answerable, inasmuch as he had in fact delivered and put into publication the libel complained of, and was therefore called upon to shew his ignorance of the contents".
[123](1837) 2 M & Rob 54 [174 ER 212].
[124][1900] 2 QB 170 at 179.
[125](1837) 2 M & Rob 54 at 56 [174 ER 212 at 212].
Even by the middle of the twentieth century, it remained common practice for a plaintiff in a defamation action to plead that the defendant published the allegedly defamatory matter with malice. But the allegation of malice could be said by then to have been "little more than a pleader's flourish or a survival of older ways"[126], "intended as, if anything, an anticipatory rebuttal of every mode by which the defamatory matter might be sought to be 'protected, or justified, or excused by law'"[127].
[126]Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 204.
[127]Motel Holdings Ltd v The Bulletin Newspaper Co Pty Ltd [1963] SR (NSW) 208 at 212.
Proof by the defendant of a justification or excuse, which when Emmens v Pottle was decided and for some time afterwards[128] might still have been thought to operate to defeat the tortious liability of the defendant by negativing the presumption of malice, had been freed through the development of the common law by the middle of the twentieth century to be understood to operate to defeat the tortious liability of the defendant for the defamatory publication directly. The common law of Australia had by then in that way evolved to reflect the approach taken in the late nineteenth century in Queensland by legislation[129] the effect of which was "to eliminate the element of malice ... and to substitute the principle that all defamation must be justified or excused"[130]. Such was the position at common law when Thompson v Australian Capital Television Pty Ltd was decided, and such is the position which the Defamation Act and cognate State and Territory legislation properly treat as the foundation for the legislative modifications they make to the common law.
[128]eg, Sun Life Assurance Co of Canada v W H Smith and Son Ltd (1933) 150 LT 211 at 214.
[129]Defamation Law of Queensland 1889 (Qld).
[130]Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 90.
Further supporting that position is that, at least since Vizetelly v Mudie's Select Library Ltd, defendants relying on innocent dissemination have been liable in defamation unless they have succeeded in discharging the onus of proving innocent dissemination. Ribeiro PJ pointed out in Oriental Press Group Ltd v Fevaworks Solutions Ltd[131] that acceptance of that liability is alone sufficient to indicate that "they must in principle be publishers, albeit in a subordinate role, for otherwise they could not be held liable at all since a fundamental constituent of the tort would be missing". That logic is reflected in the distinction drawn at common law and under statute[132] between "primary" publishers, who cannot rely on innocent dissemination, and "subordinate" or "secondary" publishers, who can.
[131](2013) 16 HKCFAR 366 at 381 [32].
[132]This distinction is now reflected in the additional statutory defence of innocent dissemination: see eg, s 32(2) of the Defamation Act 2005 (NSW), definition of "subordinate distributor".
Statements are to be found in reasons for judgment of this Court before[133] and after[134] Thompson v Australian Capital Television Pty Ltd to the effect that a publication of defamatory matter shown by a defendant to have occurred in the ordinary course of the defendant's business in circumstances in which the defendant did not know or suspect and, using reasonable diligence, would not have known or suspected that the matter was defamatory "does not amount to publication of a libel". Those statements are best understood to refer to proof of innocent dissemination operating at common law to avoid tortious liability. Understood that way, the statements do not deny that the defendant was a publisher of the matter. The statements instead acknowledge that success by the defendant in proving innocent dissemination amounts to success in establishing a justification or excuse for the publication, the legal effect of which is to avoid tortious liability for the publication.
[133]Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288.
[134]Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 [25].
The advent of the Internet has resulted in a "disaggregation" of the process of publication[135] and has facilitated a shift from "one-to-many" publication to "many-to-many" publication[136]. That technological and sociological development has not been shown to warrant relaxation of the strictness of the common law rule associated with Webb v Bloch.
[135]Rolph, "Liability for the Publication of Third Party Comments: Fairfax Media Publications Pty Ltd v Voller" (2021) 43 Sydney Law Review 225 at 239.
[136]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 390 [59], quoting Balkin, paper prepared for the "Global Constitutionalism Seminar 2010", Yale Law School, adapted from Balkin, "Media Access: A Question of Design" (2008) 76 George Washington Law Review 933.
Application of the strict common law rule as to publication, as has been emphasised, has long captured within the meaning of "publisher" all persons who have intentionally assisted in the process of publication. It is unsurprising, therefore, that statements can be found in some cases describing a publisher's liability for defamatory matter as arising by reason of the person "assisting and encouraging" another to do an act[137], or that all those who contribute to publication of a libellous book are "joint tortfeasors in respect of the ultimate publication"[138].
[137]Webb v Bloch (1928) 41 CLR 331 at 364, quoting R v Paine (1696) 5 Mod 163 at 167 [87 ER 584 at 587].
[138]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 581.
Equally clear, however, is that the strictness of the common law rule ensures that all degrees of intentional participation in the process of publication constitute publication for the purposes of the law of defamation[139]. Unlike other areas of tort law or criminal law, where "mere assistance" or "mere similarity of design" may be insufficient to establish liability of an assister as a principal[140], liability in defamation depends upon "mere communication" of the defamatory matter to a third person, provided the defendant intentionally participated to any degree in that process[141].
[139]Webb v Bloch (1928) 41 CLR 331 at 363-364; Trkulja v GoogleLLC (2018) 263 CLR 149 at 164 [40].
[140]cf Credit Lyonnais Bank Nederland NV(now Generale Bank Nederland NV) v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19 at 45-46, quoting The Koursk [1924] P 140 at 156. See also IL v The Queen (2017) 262 CLR 268 at 282 [29].
[141]Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288.
Two considerations strongly support maintenance of the strictness of the common law rule in Australia. The first is fidelity to the underlying concern of the common law of defamation to protect against damage to reputation, which should not be diminished as the threats to reputation are multiplied. The second is recognition that the balance that has been struck between freedom of communication by means of the Internet and protection of reputation is one that the Commonwealth Parliament (in enacting and maintaining the Broadcasting Services Act 1992 (Cth)[142]) and that State Parliaments and Territory legislatures (in enacting and maintaining and providing for review of[143] the Defamation Act and cognate legislation) have determined for the time being to be appropriate against the background of the stable application of common law principle.
[142]See cl 91 of Sch 5 to the Broadcasting Services Act.
[143]See s 49 of the Defamation Act 2005 (NSW).
Not unimportantly, continuing adherence to the strictness of the common law rule associated with Webb v Bloch also results in substantial conformity of the common law of Australia to the approach taken to resolving novel issues concerning publication of defamatory matter by means of the Internet in strongly reasoned common law decisions both of the Supreme Court of Canada in Crookes v Newton[144] and of the Court of Final Appeal of Hong Kong in Oriental Press Group Ltd v Fevaworks Solutions Ltd[145]. To adapt an observation made by French CJ in Paciocco v Australia & New Zealand Banking Group Ltd[146], given that a strength of common law reasoning lies in its ability to assimilate and build upon collective experience, when grappling with the application of common law principles of tortious liability inherited from a common source to meet common challenges presented by emerging global phenomena, "convergence ... is preferable to divergence even if harmonisation is beyond reach".
[144][2011] 3 SCR 269 at 281-283 [16]-[20].
[145](2013) 16 HKCFAR 366 at 376-382 [16]-[33].
[146](2016) 258 CLR 525 at 540 [10].
Overseas cases
The appellants referred to several overseas decisions which they argued to contain reasoning supporting their contention that intention to publish defamatory matter is required for a person to be a publisher. None of those decisions assists them.
Tamiz v Google Inc[147] was a decision of the Court of Appeal of England and Wales in which Google Inc was found not to have been the publisher at common law of allegedly defamatory comments posted anonymously on an independent blog created by an Internet user by means of its platform known as "Blogger.com". As Ribeiro PJ pointed out in Oriental Press Group Ltd v Fevaworks Solutions Ltd[148], the decision proceeded "on the basis that successful invocation of the defence of innocent dissemination results in the defendant being deemed not to have published at all". For reasons already stated, that process of reasoning does not reflect the common law of Australia.
[147][2013] 1 WLR 2151.
[148](2013) 16 HKCFAR 366 at 388 [53].
Monir v Wood[149] was a subsequent decision of a single judge of the High Court of England and Wales in which it was noted with reference to an earlier decision of a single judge of that Court in Bunt v Tilley[150] that the parties did not dispute the proposition that "for a person to be held liable as a primary publisher, s/he must be shown to have knowing involvement in the publication of the particular words". The appellants sought to unpack neither the meaning of the emphasised descriptor in the context of that case nor what might have been thought in the context of that case to be included in or excluded from the notion of "knowing involvement in the publication of the particular words". At least without considerably more analysis, invocation in argument of isolated statements of that kind does nothing to inform principled analysis.
[149][2018] EWHC 3525 (QB) at [135] (emphasis in original).
[150][2007] 1 WLR 1243 at 1249 [22]-[23]; [2006] 3 All ER 336 at 342.
Murray v Wishart[151] was a decision in which the New Zealand Court of Appeal held that an individual Internet user who was the administrator of a private Facebook page and who had no "actual knowledge" of the contents of third-party comments posted on the page was not liable in defamation. The Court of Appeal proceeded without reference to Webb v Bloch, and indeed without analysis of what constitutes publication at common law. Rather, the starting point for its analysis was that the issue of publication was to be determined by "strained analogy" with previously decided cases[152]. It appeared to assume that either actual or constructive knowledge of the defamatory content was necessary for publication[153]. Its ultimate conclusion that "the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher"[154] was reached having regard to the guarantee of freedom of expression in the New Zealand Bill of Rights Act 1990 (NZ). The reasoning does not reflect the common law of Australia.
[151][2014] 3 NZLR 722 at 752 [144], 754 [155].
[152][2014] 3 NZLR 722 at 745 [99].
[153][2014] 3 NZLR 722 at 740 [81]-[82].
[154][2014] 3 NZLR 722 at 752 [144].
Crookes v Newton was a decision of the Supreme Court of Canada which, as already noted, expounded the common law rule about publication in terms consistent with Webb v Bloch[155]. The issue before the Supreme Court was whether the creation of a hyperlink in an article posted on a website, in and of itself, constituted publication of the content which an Internet user reading the article was able to access by clicking on the hyperlink. The Supreme Court found that a "mere" hyperlink did not engage the common law rule on the basis that the hyperlink was essentially a reference to other material rather than republication of that other material[156]. The conduct of the appellants in the present case, like the conduct of the respondents in Oriental Press Group Ltd v Fevaworks Solutions Ltd, was of a wholly different character.
[155][2011] 3 SCR 269 at 281-283 [16]-[20].
[156][2011] 3 SCR 269 at 289 [36].
The appellants as publishers
In Oriental Press Group Ltd v Fevaworks Solutions Ltd, not unlike in Thompson v Australian Capital Television Pty Ltd, the issue was not as to publication but as to whether the common law defence of innocent dissemination was available to the respondents, who administered a website which hosted an Internet discussion forum on which users posted defamatory matter. Before turning to resolve that issue, Ribeiro PJ said of the respondents[157]:
"They were certainly publishers of those postings (and do not seek to argue otherwise) since they provided the platform for their dissemination, but the respondents were not aware of their content and realistically, in a many-to-many context, did not have the ability or opportunity to prevent their dissemination, having learned of them only after they had already been published by their originators."
[157](2013) 16 HKCFAR 366 at 399 [89].
Except that the present appellants do "seek to argue otherwise", that description of the respondents in Oriental Press Group Ltd v Fevaworks Solutions Ltd is an apt description of the present appellants.
Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to "Like" or "Share") to "Comment" on the content by posting a comment which (if not "filtered" so as to be automatically "hidden" if it contained "moderated words") was automatically accessible in a comprehensible form by other Facebook users.
Not to the point of the appellants having been publishers is the fact that: the appellants had no control over the facility by which the Facebook service was provided to them and to Facebook users; the "Comment" function was a standard feature of the Facebook service which the appellants could not disable; it was not possible for them to delete all comments in advance; or they could have effectively "hidden" all comments posted by Facebook users only by applying an extremely long list of common words as "moderated words".
The primary judge found that over 15 million Australians are Facebook users[158]. The appellants chose to operate public Facebook pages in order to engage commercially with that significant segment of the population.
[158]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [64].
The primary judge found that the "primary purpose" of the operation of each appellant's public Facebook page was "to optimise readership of the newspaper (whether hardcopy or digital) or broadcast and to optimise advertising revenue"[159]. Each appellant "provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments"[160]. Indeed, the primary judge found that[161]:
"[t]he existence and number of comments ... from third-party users is an important (and, more probably than not, the most important) aspect of the public Facebook page, as it affects the Facebook algorithm and increases the profile of the Facebook page and the consequential popularity of the Facebook page, thereby increasing readership ... and augmenting advertising sales".
[159]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [209].
[160]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [224].
[161]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [90(xvii)].
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.
The conduct of the appellants is accordingly distinguishable from "graffitied wall" cases, such as Byrne v Deane[162] and Urbanchich v Drummoyne Municipal Council[163], in which issues have been raised about whether an owner of a building or noticeboard on which a defamatory statement was initially wrongfully affixed by a third party subsequently "consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement ... so that persons other than the plaintiff may continue to read it"[164]. There is plainly a critical difference between that line of cases, involving defendants who have played no role in the facilitation of publication prior to becoming aware of the defamatory matter, and the present case.
[162][1937] 1 KB 818.
[163](1991) Aust Torts Reports ¶81-127.
[164]Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 at 69,193.
Where, as here, the operator of an "electronic bulletin board" posts material with the intention that third parties will comment on the material posted, the operator cannot escape being a publisher of the comments of those third parties. The most appropriate analogy is with live television or talkback radio. As Brennan CJ, Dawson and Toohey JJ recognised in Thompson v Australian Capital Television Pty Ltd, in the context of a live to air broadcast of a television program being simultaneously aired by another network, "the nature of a live to air current affairs program carries a high risk of defamatory statements being made"[165] and such a program "by its nature would be likely to involve comments about persons"[166].
[165](1996) 186 CLR 574 at 590.
[166](1996) 186 CLR 574 at 590, quoting Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513 at 520.
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.
Conclusion
The appeals should be dismissed with costs.
EDELMAN J.
Introduction
Nationwide News Pty Ltd, one of the appellants, posts news items and images to a public Facebook page that it manages. The news items include hyperlinks to stories on the website for The Australian newspaper[167]. At the relevant time, Facebook did not permit the creators of Facebook pages to prevent any Facebook user from exercising an automatic option to "comment" on the publicly posted and hyperlinked news story. Suppose that Nationwide News published a link on its Facebook page to a mundane story about weather patterns and that a reader posted, in the space reserved for "comments" on the story, a defamatory remark that a particular named person was a thief. The remark was entirely unrelated to the weather story. Suppose, also, that at the time the remark was posted, Nationwide News had no knowledge of the remark, little or no ability to prevent it being made, and a system that would remove the remark as soon as Nationwide News became aware of it.
[167]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 719 [85].
Is Nationwide News a publisher of such a defamatory remark, which it neither invited nor requested, which it manifested no intention to publish, of which it was unaware, and which it would have removed as soon as reasonably possible? This question concerns the scope of the requirement in the Defamation Act 2005 (NSW), which reflects the common law in this respect, that a person must "publish" a statement to be liable for defamation.
The question for determination on these appeals is expressed so broadly that it encompasses circumstances of this nature. Unlike the other members of this Court apart from Steward J, I do not accept that the appellants are publishers of such uninvited words written on their Facebook pages. It can be accepted that, in the circumstances of this case, Nationwide News intended that readers publish comments concerning the story it posted. But, in my respectful view, there is no meaningful sense in which it could be concluded that Nationwide News intended to publish remarks that were not, in any imaginable sense, a "comment" on the story. The remark described above would bear no more resemblance to invited "comments" on the posted story than defamatory graffiti on a commercial noticeboard would bear to invited notices on the commercial noticeboard. Neither satisfies the required intention for publication. Equally, the remark above would be no more an intended publication than a television broadcast which accidentally captures in the background an unknown stranger who, unbeknownst to the live presenter and camera operator, walks past wearing a t-shirt with a defamatory message or carrying a defamatory placard.
I have had the considerable benefit of reading in draft the reasons of Steward J, which conclude that the parties to these appeals erred in their assumption that the appellants either were publishers of all third‑party comments on their respective Facebook pages or were not publishers of any of them. I agree with that conclusion. Steward J's comprehensive treatment of the factual background to this case and the authorities permits me to express my reasons below in relation to two further matters only, which illustrate the lack of principle for the assumption of the parties and the lack of justification for the assumption in any of the authorities upon which the parties relied.
Intention to publish and strict liability in defamation
Intention and fault
Defamation is a tort of strict liability. This means that it is actionable, subject to defences, without proof of fault. The defendant must intentionally perform an act of publishing a communication, which is of and concerning the plaintiff[168] and which is defamatory. Alternatively, if the defendant does not intentionally perform the act of publication then the defendant must assist in another's act of publication with a common intention to publish. In each case, the defendant must intend the act of publication. In each case, the relevant intention is an objective or manifested intention based upon the person's words or acts in the circumstances.
[168]Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288.
Secondly, and consistently with the foregoing, it has emerged in more recent times that some acts that facilitate communication of defamatory material may be "so passive"[288] that they cannot constitute publication of that material. Thus, in Bunt v Tilley[289], internet service providers were not found to be the publishers of defamatory messages which had been posted on websites which used the services of those providers. Playing a merely "passive instrumental role"[290] did not constitute participation in publication of the messages. In Google Inc v Duffy[291], Kourakis CJ did not agree that an internet service provider was only a passive provider of a service, but otherwise accepted that such providers were not publishers because what they did was "too remote" from the act of publication. The Chief Justice said[292]:
"The provision of an electronic protocol which allows a user access to the internet from his or her device plays no part in the selection of the particular information which is extracted from it. Moreover, an [internet service provider] has no practical capacity to control or limit the information obtained at the granular level needed to block particular statements or limit the information. The connection to the World Wide Web provided by [internet service providers] is too remote from the publication of written material on the computer screens of users to be a publication even as a secondary participant."
[288]Crookes v Newton [2011] 3 SCR 269 at 283 [21] per Abella J (on behalf of Binnie, LeBel, Charron, Rothstein and Cromwell JJ).
[289][2007] 1 WLR 1243; [2006] 3 All ER 336.
[290]Bunt v Tilley [2007] 1 WLR 1243 at 1249 [23] per Eady J; [2006] 3 All ER 336 at 342.
[291](2017) 129 SASR 304.
[292]Google Inc v Duffy (2017) 129 SASR 304 at 344 [139] (Peek and Hinton JJ agreeing).
In Metropolitan International Schools Ltd v Designtechnica Corpn[293] it was held that Google Inc was not a publisher when a search carried out by a user of its search engine resulted in the production of defamatory material. That was because the search was "performed automatically" without "human input"[294]. A different view was expressed by Beach J in Trkulja v Google Inc LLC [No 5][295]. His Honour observed that internet search engines "operate precisely as intended by those who own them"[296]. It was on this basis that Kourakis CJ doubted that Google Inc offered only a passive service in making its search engine available to users of the Internet[297]. It has since been accepted by this Court that Beach J's observation is "strongly arguable"[298]. This conclusion follows from the proximate causative link between the application of Google's search engine and the resulting publication of defamatory content in the search results. In this way, it can be seen that Google Inc is an actual conveyor of such content. That publication of such material is a "direct consequence"[299] of the application of the search engine. Accordingly, participation of this kind, in the means of communicating defamatory material, cannot be characterised as passive in nature.
[293][2011] 1 WLR 1743; [2010] 3 All ER 548.
[294]Metropolitan International Schools Ltd v Designtechnica Corpn [2011] 1 WLR 1743 at 1757 [50] per Eady J; [2010] 3 All ER 548 at 561.
[295][2012] VSC 533.
[296]Trkulja v Google Inc LLC [No 5] [2012] VSC 533 at [27]; cf Rana v Google Australia Pty Ltd [2013] FCA 60.
[297]Google Inc v Duffy (2017) 129 SASR 304 at 352 [155] (Peek and Hinton JJ agreeing on this point).
[298]Trkulja v Google LLC (2018) 263 CLR 149 at 163 [38] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. See also Trkulja v Google Inc [2015] VSC 635 at [47] per McDonald J; cf Google LLC v Trkulja (2016) 342 ALR 504 at 590 [348] per Ashley, Ferguson and McLeish JJA.
[299]Trkulja v Google Inc [2015] VSC 635 at [45] per McDonald J.
In contrast to the position of an internet service provider[300], or to that of the person who publishes hyperlinks on a website[301], the providers, administrators and managers of a website, which hosted a popular Internet discussion forum, were found to be publishers of defamatory statements posted by third‑party users of that forum[302]. The owners of that forum were found to have "played an active role in encouraging and facilitating the multitude of Internet postings by members of their forum"[303]. Those owners had designed the forum; they devised the rules for the forum and otherwise laid down the conditions for becoming a member and for making posts; they provided members with access to discussion threads developed on their forum; they employed administrators to monitor discussions and to delete posts that broke their rules; and they derived income from advertisements placed on their website[304]. However, the Hong Kong Court of Final Appeal ultimately decided that the owners were subordinate, and not main or first, publishers of the third‑party posts[305].
[300]See, eg, Bunt v Tilley [2007] 1 WLR 1243; [2006] 3 All ER 336.
[301]See, eg, Crookes v Newton [2011] 3 SCR 269.
[302]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366.
[303]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 387 [51] per Ribeiro PJ (Ma CJ, Chan PJ and Litton and Gleeson NPJJ agreeing).
[304]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 387 [51] per Ribeiro PJ (Ma CJ, Chan PJ and Litton and Gleeson NPJJ agreeing).
[305]Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 399 [89], 406 [113] per Ribeiro PJ (Ma CJ, Chan PJ and Litton and Gleeson NPJJ agreeing).
Returning to Duffy, the issue before the Full Court of the Supreme Court of South Australia was whether Google Inc was a subsidiary publisher when its search engine was used and defamatory material was produced[306]. Kourakis CJ correctly observed that a key issue is the extent to which an electronic program facilitates the production of defamatory material[307]. Internet forum hosts, like the defendants in Oriental Press, have been held to be publishers of third‑party material posted on their websites because of their greater involvement in procuring and controlling the making of such comments, thus evidencing the existence of a more direct connection between those hosts and those posts[308]. His Honour explained that connection as follows[309]:
"Webpage masters of internet forums or web‑based bulletin sites which receive communications electronically but then make them readable in an organised manner by visitors to their webpages are in a very different position. Hosts of those webpages more closely facilitate the publication of material, on their sites because:
•they invite communications on a particular subject matter (indeed, comment and discussion is the very purpose of such sites);
•they have a greater capacity to read both by virtue of the form it is in and the more limited quantity of material they receive in comparison to the data for which telecommunications cable provider [sic] or an [internet service provider] is a conduit; and
•they have a practical capacity to control the content of their website."
[306]Google Inc v Duffy (2017) 129 SASR 304 at 352 [158], 359 [184] per Kourakis CJ, 401 [354] per Peek J, 467 [597] per Hinton J.
[307]Google Inc v Duffy (2017) 129 SASR 304 at 344-345 [140] (Peek and Hinton JJ agreeing on this point).
[308]See, eg, Godfrey v Demon Internet Ltd [2001] QB 201; Metropolitan International Schools Ltd v Designtechnica Corpn [2011] 1 WLR 1743; [2010] 3 All ER 548.
[309]Google Inc v Duffy (2017) 129 SASR 304 at 345 [141] (Peek and Hinton JJ agreeing).
A similar conclusion (expressed with some doubt) was reached by the Court of Appeal for England and Wales in Tamiz v Google Inc[310] in relation to defamatory material posted on a blog hosted on a blogging platform provided by Google Inc. The provision of this platform was said to be analogous to a noticeboard controlled by Google Inc. Richards LJ observed[311]:
"The provision of a platform for the blogs is equivalent to the provision of a notice board; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the notice board and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the notice board. Most importantly, it makes the notice board available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms."
[310][2013] 1 WLR 2151.
[311]Tamiz v Google Inc [2013] 1 WLR 2151 at 2165 [33] (Lord Dyson MR and Sullivan LJ agreeing); cf Google Inc v Duffy (2017) 129 SASR 304.
But even then, and contrary to the reasons in Duffy, Richards LJ was not satisfied that Google Inc could be a secondary publisher of third‑party defamatory material unless Google Inc had been notified of the presence of that material and then failed to remove that material within a reasonable period of time[312]. It is unnecessary to determine whether that conclusion is correct.
[312]Tamiz v Google Inc [2013] 1 WLR 2151 at 2165-2166 [34]-[36] (Lord Dyson MR and Sullivan LJ agreeing).
The foregoing cases suggest that concepts of passivity, control and prior knowledge of defamatory content may be relevant to a factual determination as to whether a person has participated in the publication of a third party's defamatory post or comment on Facebook. It will be difficult to conclude, as a factual proposition, that such a person has so participated if they could not practicably control the making of such a defamatory post, had no prior knowledge of the content of that post, and did no more than participate in an electronic conversation using Facebook. In other words, the mere act of posting by a Facebook page administrator is unlikely to justify, in and of itself, the factual conclusion that the administrator has thereby participated in the publication of all subsequent responses. More is needed to be a publisher.
Relevantly here, different considerations arise if it can be said that the Facebook page administrator procured, provoked or conduced the defamatory third‑party response as distinct from any generally responsive posts. In those circumstances, and consistently with the observations of Isaacs J in Webb, there will be a more direct causative relationship between the administrator's post and the resulting third‑party defamatory comment. In such cases, a factual conclusion of participation in the publication of the defamatory comment is more likely to be justified. Such a conclusion involves no modification of the law, but is merely an expression of its application to the specific facts of this case.
No doubt there are many ways in which a Facebook page owner might be found, on the facts of a given case, to be a publisher of third‑party posts or comments. For example, in a different statutory context, the Federal Court of Australia has decided that a Facebook page owner was the publisher of third‑party posts when it acquired knowledge of the posts and decided not to remove them[313]. The Court applied the Byrne v Deane line of cases.
[313]Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [No 2] (2011) 192 FCR 34 at 42 [33] per Finkelstein J.
The appellants here were not in the same position as the platform hosts in Oriental Press and Tamiz. That is because they were in the same position as all other public Facebook users. The appellants, to use the analogy from Tamiz, were users of Facebook's noticeboard and not their own noticeboard[314]. They owned no electronic program that caused or facilitated the publication of third‑party comments; Facebook owned that program. They were also not in the same position as Google; they did not convey the third-party comments. Instead, the appellants used a system devised, designed and controlled (to an extent) by Facebook itself, and were subject to Facebook's conditions of use like all other users. An aspect of Facebook's control was described by the primary judge as follows[315]:
"As is common knowledge, Facebook and other social media utilise algorithms that measure the relevance of articles and correlate the articles with the comment. In relation to Facebook pages (including public Facebook pages), the algorithm utilises, as one criterion, the incidence of persons gaining access to a particular comment or article. Mr Shelley detailed examples of how the outcome operates, albeit in circumstances where the algorithm itself is commercially sensitive and not available, even to experts.
Essentially, Facebook measures the number of persons who show interest in the content (by, for example, liking an article, or sharing an article, or making comment on an article) and assesses a 'genus' of the persons who show interest. It then publishes the article to all persons within that genus.
The same process occurs, for a public Facebook page of the kind with which the Court is here dealing in each of the three proceedings. Further, the content on Facebook may be searched and one could, if one were so minded, search for the plaintiff's name and the Facebook entries in relation to the plaintiff would be discovered."
[314]Tamiz v Google Inc [2013] 1 WLR 2151 at 2165 [33] per Richards LJ (Lord Dyson MR and Sullivan LJ agreeing); cf Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at 387-388 [53] per Ribeiro PJ (Ma CJ, Chan PJ and Litton and Gleeson NPJJ agreeing).
[315]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [16]‑[18].
Save in the case of posts that procure, provoke or conduce the making of defamatory responses, the appellants only facilitated the publication of the third‑party comments in two ways: first, by creating their own Facebook pages; and secondly, by making their own posts. Neither, whether considered separately or cumulatively, made the appellants publishers of all third‑party comments made on their respective Facebook pages. The creation of a Facebook page gives the page administrator the ability to make posts, filter out words, control – to an extent – third‑party comments after they have been made (ie, by deleting or hiding posts or by banning other users), and irreversibly block, in advance, all comments. The subsequent ability to hide or control comments is not relevant to this case; as previously noted, the respondent does not contend that this is a case whereby the appellants have become publishers by reason of their failure to delete defamatory material within a reasonable time[316]. The ability to block all comments in advance or filter out certain words with the effect of blocking comments caught by the filter in advance is also irrelevant. That is because these have the effect of preventing, rather than causing, publication.
[316]cf Byrne v Deane [1937] 1 KB 818 at 830 per Greer LJ. See also Tamiz v Google Inc [2013] 1 WLR 2151 at 2165-2166 [33]-[36] per Richards LJ (Lord Dyson MR and Sullivan LJ agreeing).
This leaves the ability for the Facebook page administrator to make posts. Undoubtedly, these were made generally for the purpose of stimulating or inspiring the making of responsive comments by third parties. However, that of itself is not enough to permit the conclusion that the appellants participated, in some fashion, in the publication of those responses. This is not a case where it can be said that the appellants' conduct in every case of posting amounted to procuring, encouraging or conducing the posting of defamatory responses[317]. Nor is this a case where, at the very moment of third‑party posting, it could be said that the appellants assented to, or in some way adopted, the contents of such posts. Rather, Facebook here has provided a means to have a public conversation, which takes place electronically, using its platform; it is a public meeting that takes place on the Internet. The convenor of a public meeting, however, is not the publisher of another person's speech, unless she or he in some way contributed to its making or in some way assented to it[318]. As the New Zealand Court of Appeal observed in a case concerning the publication of third‑party comments on a person's Facebook page[319]:
"[T]he most appropriate analogy in the present case is that of a public meeting. If Mr Murray had convened a public meeting on the subject of Mr Wishart's book, Mr Murray would have been liable for his own statements at the meeting but not for those of others who spoke at the meeting, unless he adopted others' statements himself. ... [T]his is a useful analogy because it incorporates a factor in the present case ... the fact that Mr Murray solicited third party comments about Mr Wishart's book. Speakers at a public meeting could be identified (and sued) if they made defamatory statements just as many contributors to the Facebook page could be. That is another common factor.
We acknowledge there are obvious differences between the present case and a public meeting. For example, statements at a meeting would be oral and therefore ephemeral unlike the written comments on the Facebook page.
The public meeting analogy does illustrate a situation where even if a person incites defamation, he or she will not necessarily be liable for defamatory statements made by others. That is the case even if he or she ought to have known that defamatory comments could be made by those present at the meeting."
[317]cf Pritchard v Van Nes 2016 BCSC 686.
[318]Murray v Wishart [2014] 3 NZLR 722 at 750 [132] per O'Regan P and Ellen France J (French J agreeing).
[319]Murray v Wishart [2014] 3 NZLR 722 at 750-751 [132]-[134] per O'Regan P and Ellen France J (French J agreeing).
It follows, and again save for those posts that procured, provoked or conduced defamatory responses, that the appellants' posts here were insufficiently connected to all the third-party comments made thereafter in response, to justify a conclusion that the appellants participated in their publication; the appellants' posts cannot be characterised as "instrumental"[320] in the bringing about of such publication. That overstates the role played by each of the appellants. The appellants' posts are just the commencement of an electronic conversation. They are no more "instrumental" in making "available" future comments, than the first third‑party comment is "instrumental" to the subsequent appearance of all third-party comments then made in response to it.
[320]cf Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 725 [111] per Meagher JA and Simpson A-JA.
In that respect, I respectfully disagree with the view of the learned primary judge. His Honour was of the view that "if an author of a comment, which is defamatory, were to post that comment on a public Facebook page, publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third‑party users to the comments on the page"[321]. In the case of a public, but not a private, Facebook page, I accept that when a post takes place, in most cases it is in the hope of prompting some response. But, for the reasons already given, merely allowing third‑party access to one's Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all the third‑party comments posted thereafter. Were it not so, all Facebook page owners, whether public or private, would be publishers of third‑party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredicted. Indeed, it might extend to cases where a Facebook page is hacked and then has posted on it entirely unwelcome, uninvited and vile defamatory comments, whether by the hacker or in response to a post made by the hacker. It might also render Facebook itself, at common law, the publisher of all posts made on Facebook[322]. It follows, and leaving aside cases in which a third‑party comment is adopted by a Facebook page owner, that there must be something about the content, nature or circumstances of a Facebook post that justifies a conclusion that it has procured, provoked or conduced a defamatory third‑party comment or comments, such as to make the owner the publisher of such comments.
[321]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [106] per Rothman J.
[322]Noting that this observation expresses no view on the applicability or otherwise of cl 91 of Sch 5 to the Broadcasting Services Act 1992 (Cth) to this case: cf Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 716-717 [62]-[69] per Meagher JA and Simpson A-JA.
Nothing otherwise turns upon the fact that each appellant, according to Facebook's Statement of Rights and Responsibilities, owned the content and information they posted on Facebook[323]. Whatever ownership might mean in that context, it did not render the appellants publishers of third‑party comments from the moment they were posted. Nor does the concept of "hosting" a Facebook page appear to have any significance. Each appellant engaged with Facebook in the same way as other Facebook users.
[323]Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700 at 719 [81] per Meagher JA and Simpson A-JA.
The other matters relied upon by the respondent, as evidence of participation in the publication of the third‑party comments, do not justify a contrary conclusion. The fact that the appellants' monitoring of third‑party comments takes place after a comment has been made[324], means it can have no causative relationship with the act of posting. At most, that monitoring might lead to the deletion or hiding of a post, but only after it has been made[325]. Nor does the fact that the appellants were pursuing their commercial and financial interests make any difference to the outcome here. The pursuit of such interests supplies a motive and increases the likelihood that each appellant will make posts that will lead to greater third‑party engagement. But the issue as to whether the appellants are publishers of the third‑party Facebook user comments cannot turn upon the number of posts made and does not, without more, bear upon the relationship between any given post and any given comment.
[324]However, to monitor every third‑party comment made in response was described as "physically impossible" and is necessarily made more difficult through the presence of "sub‑threads of comments" and because third‑party engagement can be delayed in the sense of it occurring "many days after the initial post by the Administrator": Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [39]‑[40] per Rothman J.
[325]Although it was conceded that the monitoring of third‑party comments can occur in advance (see [150] above), this was not done by any of the appellants. In that respect, it was also said this "would require a disproportionate amount of effort to the number of occasions that users have been blocked or comments deleted or hidden": Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [54] per Rothman J.
However, different considerations would arise in relation to Facebook posts that are likely to provoke or procure adverse third‑party comments. Where such posts in fact procure defamatory comments, the Facebook page owner will have participated in their publication. Thus, in Pritchard v Van Nes, by reason of the inflammatory and defamatory nature of Ms Van Nes' posts on her own Facebook page, and the particular circumstances of the case, it was found that she "ought to have anticipated" that further defamatory third‑party comments would then be made[326]. Ms Van Nes was thus the publisher of those comments.
[326]2016 BCSC 686 at [110]-[113] per Saunders J.
It will be a question of fact whether a given initial post has procured a third‑party Facebook user to post a defamatory response. Here, the finding below was that only "certain" posts were potentially of this kind[327]. The circumstances in which those posts were made were that they were both "expected"[328] and objectively "likely"[329] to give rise to adverse comments. They thus exhibited a sufficient connection with those comments to justify a finding that the appellants had procured, provoked or conduced their making and that each was thus a publisher of them. (Whether those comments are defamatory is a matter that is yet to be decided.) In that respect, leaving aside the finding made below about expectation, it was sufficient that it was objectively likely that the posts would lead to the making of third‑party adverse comments. But otherwise, and on the facts as found in this case, the appellants were not the publishers of all other third‑party comments made on their respective Facebook pages.
[327]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [77], [90(xi)], [225] per Rothman J.
[328]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [90(xi)] per Rothman J.
[329]Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [90(xii)] per Rothman J.
The foregoing position of the appellants may be contrasted with that of the defendant Channel 7 in Thompson v Australian Capital Television Pty Ltd[330]. That case concerned the live transmission by Channel 7 in Canberra of a current affairs television program produced by Channel 9 in Sydney. The program was transmitted to Channel 7 by Channel 9. It included a live interview of a woman who made defamatory remarks about her father. Whilst Channel 7 had not produced the program, it was found that it had the ability to control and supervise the televised material[331]. Channel 7 had also decided that the broadcast be "near instantaneous" in circumstances where "a live to air current affairs program carries a high risk of defamatory statements being made"[332]. On those facts, this Court decided that Channel 7 was, together with Channel 9, a publisher of the defamatory remarks; the two broadcasters were joint tortfeasors because there had been "a concurrence in the act or acts causing damage"[333]. The position of the appellants here is distinguishable for the following reasons. First, Channel 7 was the actual conveyer of the defamatory material by its act of broadcasting; in contrast, for the reasons already given, as users of Facebook, the appellants are not the actual conveyers of third‑party comments posted to their respective Facebook pages. Secondly, the appellants did not possess the equivalent of Channel 7's capacity to "control and supervise" the publication of the material. Thirdly, save in the case of the "certain" posts described above, it cannot be said that using Facebook in the ordinary course necessarily carries with it "a high risk" of defamatory third‑party comments being posted.
[330](1996) 186 CLR 574.
[331]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 589 per Brennan CJ, Dawson and Toohey JJ.
[332]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 590 per Brennan CJ, Dawson and Toohey JJ.
[333]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580-581 per Brennan CJ, Dawson and Toohey JJ, quoting The Koursk [1924] P 140 at 159-160 per Sargant LJ.
I would allow the appeals in part and would answer the question posed on the facts of this case as follows:
The respondent will establish the publication element of the cause of action of defamation in relation to those third‑party comments which had been procured, provoked or conduced by posts made by the appellants on their respective Facebook pages.