Media outlets lose appeal over Facebook publication ruling (NSW)
By Jackie Waugh
Mr Dylan Voller, a former Northern Territory youth detainee, commenced defamation proceedings in the Supreme Court of New South Wales against Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd claiming that comments posted on the Facebook page of each of the three publishers in response to articles published by those publishers, were defamatory of him.
The matter came before his Honour Rothman for determination of the question “Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?”
His Honour found that it is not the compiling of a comment that gives rise to damages in defamation; it is its publication. Further, it is not the compiling of a message that amounts to the publication of the message; it is the placement of the message in a form that is comprehensible and able to be downloaded and the consequence that it is the ownership of the public Facebook page that attracts a reader. Rothman J found that the defendant media outlets were a first or primary publisher, in relation to the general readership of the Facebook page it operates, and answered the question of whether the defendant in each of the proceedings is a publisher, in the affirmative: Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd (2019) Aust Torts Reports ¶82-459; [WJ3]  NSWSC 766.
The media outlets sought leave to appeal. They argued that the primary judge erred in finding that they were a publisher and therefore erred in answering the separate question in the affirmative.
The court found that the media outlets facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory. Further, the primary judge did not err in concluding that, in the circumstances revealed in the evidence, the media outlets were publishers of third-party posts on their Facebook pages. 
Accordingly, the court granted leave to appeal and dismissed the appeal: Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102.
This case will shortly be headnoted in the Australian Torts Reporter.
[WJ3]Please hyperlink CCH citation