Australian High Court Says Facebook Accountholders “Publish” Third-Party Defamatory Comments–Fairfax Media v. Voller

The High Court of Australia has issued a troubling ruling that says Facebook accountholders potentially could be strictly liable for all defamatory comments to their Facebook posts. That legal standard could devastate social media usage in Australia. It increases the risk that ordinary social media users could be liable for defamation caused by their so-called friends. That risk encourages social media users to actively police the comments of their friends–or stop posting entirely.

[Note: this is my first blog post on a High Court of Australia opinion, though I had a guest blog post from a decade ago about keyword advertising. I don’t know the unique dynamics and procedures of this court, so I don’t know what backstories might underlie this opinion. I still think I got the gist of the opinion because Australia is a commonwealth country and the opinion leans heavily on standard common law tort principles.]

Context

The defendants/appellants are media entities that post links to their stories to their Facebook accounts. Like other Facebook posts, readers can comment on the posts. I surmise the plaintiff/respondent believes some of those comments were defamatory. A dispositive legal question is whether or not the Facebook accountholders “published” the users’ allegedly defamatory comments. If not, then the parties stipulated that the defense wins. The lower court held that the accountholders did publish the users’ comments. On appeal, the High Court agreed with the lower court that the defendants “published” the users’ comments. However, the court split 5-2, producing 4 opinions running over 70 pages.

Having resolved the publication element, the case should go back to the lower court to address other prima facie elements and defenses, including whether the defendants can rely on the defense of “innocent dissemination.” The High Court makes it clear that “innocent dissemination” is an affirmative defense which does not negate the publication element. In other words, a defamation plaintiff need only establish publication to satisfy its prima facie case; it’s not the plaintiff’s burden to also establish culpable dissemination. Because there are unresolved questions, the defendants might ultimately win.

Still, the High Court’s resolution of “publication” is an unfortunate development. It legally equates ordinary social media users with traditional media publishers, broadcasters, and other for-profit enterprises who likely have training in defamation law, the staff to affirmative manage defamation risk, and insurance coverage for defamation claims. [Note: standard homeowners/rental insurance policies may provide coverage for defamation liability.]

The court’s conclusion diverges from US law. US courts would never reach the “publication” issue in this case because Section 230 moots the question. Whether or not a Facebook accountholder “publishes” other user comments, Section 230 completely immunizes all legal liability for defamatory third-party comments. (Note: Section 230 expressly protects Facebook accountholders, even though they are Facebook users, because it covers “providers and users of interactive computer services”). If Section 230 were repealed, US courts would potentially have to grapple with the theoretical questions that the Australian High Court struggles with; plus the First Amendment would come into play. Fortunately, by mooting this issue, Section 230 promotes free speech outcomes that we benefit from every single day.

Without Section 230 to moot the question, the Australian court conducts an abstract legal analysis of venerable tort doctrines. This is the kind of opinion we saw in the US in the 1990s, when Internet exceptionalism was at its height and judges struggled to determine the proper analogy for Internet activity. It’s jarring to see this kind of theoretical tort doctrinal analysis in 2021, when the High Court surely understood how its decision could impact the daily lives of millions of Australians.

The Court’s Opinions

Everyone agrees that defamation is a strict liability tort (i.e., the defendant’s knowledge of the content’s defamatory character is irrelevant) and “publication” is a required element of the plaintiff’s prima facie case.

The 3-justice plurality opinion (which I found a little hard to follow) says “publication” merely requires “a voluntary act of participation in its communication.” Thus, the plurality concludes: “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.”

Two justices concurred in an opinion I found a little easier to read. The concurrence says “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.” They defined “intentional participation” as “an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter…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.”

The concurrence expressly rejects that social media “many-to-many” conversations change this rule. They conclude that Facebook accountholders, by posting to Facebook, have the requisite intentionality for all responsive user comments:

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….

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.

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.

These last two points are tone-deaf. Sure, commercial media defendants make profit-maximizing decisions. But the court’s ruling treats media defendants and ordinary social media users as equally culpable for “publishing” third-party social media comments. Average Australian social media users aren’t making any economic decisions at all. They are just talking to each other.

Two justices dissent. Justice Edelman says:

by merely creating a page and posting a story with an invitation to comment on the story (an invitation which the appellants could not then disable), the appellants did not manifest any intention, nor any common purpose with the author of the comment, to publish words that are entirely unrelated to the posted story. Such unrelated words would not be in pursuance of, or in response to, the invitation….Provided that a comment that is written in response to the invitation is genuinely a comment on the story, the appellants will be publishers of that comment, irrespective of whether the appellants knew of, or could have known of, the comment at the time it was published.

I don’t love Justice Edelman’s approach that a Facebook accountholder “publishes” any third-party comments that are within the topical scope of the initial post. That would create a new ancillary point to litigate (were the post and the comment topically related), yet his contemplated exclusions would help defendants only in exceptional cases.

In dissent, Justice Steward says:

a person does not participate in the communication or conveyance of defamatory material merely because, “but for” something they did, there would have been no such communication or conveyance

This is an excellent point–tort purists should demand that publication requires proximate causation, not just but-for causation.

He adds:

some acts that facilitate communication of defamatory material may be “so passive” that they cannot constitute publication of that material

I like the direction Justice Steward is going. “Passive publication” is an oxymoron, so pick one. However, in 2021, it’s entirely clear that any distinction between “active” editorial intermediation and “passive” dissemination inevitably becomes incoherent in the Internet context.

Justice Steward continues:

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…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…

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

I generally think this is the right direction, but as with Justice Edelman’s approach, I don’t like the idea of linking the topical scope of the initial commentary to whether the accountholder “published” the reply comments. This approach reminded me of Judge Kozinski’s poorly constructed “harassthem.com” example from the first Roommates.com Ninth Circuit opinion that he wisely omitted from his en banc opinion.

Justice Steward concludes that the court’s legal standard means:

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

Blech. Due to Section 230, we have it so much better here in the US.

Case citation: Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27