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Businesses Claim 'We Didn't Even Shoot The Sheriff' | HCA Holds in Recent Defamation Decision that it Does Not Matter

Litigation: 07 October 2021

A recent High Court decision makes business owners responsible for defamatory material published by third parties on their social media pages when engaging with their content. If your business operates a Facebook, Instagram, LinkedIn, Tiktok or anything else, you need to seriously consider monitoring your online presence or risk potentially costly legal battles.

The High Court decision

Following a strong 5:2 majority in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27, the High Court has dismissed appeals and held that public Facebook pages are liable for allegedly defamatory comments posted by third-party users in response to their content if it can be found that they facilitated, encouraged or participated in the communication of the defamatory material.

Gageler and Gordon JJ's decision quoted former Chief Judge of the New York Court of Appeals, Benjamin Cardozo in Ostrowe v Lee (1931) 175 NE 505 at 505.

"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 anyone else."

This fits with the decision's theme that technological and sociological developments do not warrant relaxation of the strictness of the common law rule.

The common law publication rule, taken from Webb v Bloch and affirmed in Trkulja v Google LLC, positions any person who voluntarily contributes in some capacity to the publication of defamatory matter, as a publisher of that material.

Although the Appellants in this instance were media outlets and the source of their respective Facebook pages, the expectation is that this shaping of the publication rule will extend beyond these facts.

Considerations for your business

In light of this decision, any person or organisation who facilitates an online or social media presence for their brand that permits third-party users to post in response to their content, can now also be held liable for any defamatory material that is published to their page.

Businesses should consider their current digital presence carefully, particularly if permission settings on social media sites permit public engagement without administrative oversight.

In addition to Voller, there have also been significant reforms made to the Defamation Act that you can read about here in our article Turn and Face the Strange | Changes to Defamation Law in Victoria. From 1 July 2021, any action arising from content published after this date must be likely to cause or have caused "serious harmto the plaintiff's reputation.

This serious harm element will limit the effect Voller has on the defamation landscape by filtering out most claims from content published after 1 July this year that cannot meet this threshold.

Businesses will now have to balance this potentially higher risk of exposure to defamation proceedings, against the benefits of having engagement in their online spaces.

To discuss how to appropriately manage your risk, speak to Paolo Tatti, Amanda Robinson, or Thomas Carroll of our offices today.

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