High Court rules media outlets liable for unrelated third-party comments

Posted on September 22, 2021

In a controversial decision which may result in the need for legislative change, the High Court has ruled that media outlets are publishers of third-party comments on their social media pages.  

This is an extremely detrimental situation for media outlets, who rely on comments and sharing of articles to produce traffic and publicity, and in turn, revenue.

For years it has been assumed that liability lies with the person who posts a comment. After the recent decision of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, media outlets will need to reassess the value of promotion via public comments and sharing versus the potential liability. The ability to disable comments which is now available may be a more enticing option than the alternative.

The action for defamation was initially brought against the media outlets as a result of comments made by the general public on the media outlets Facebook pages. In order to bring the action against these specific defendants, which is yet to be heard, it first needed to be determined whether or not such comments were deemed to be published by the media outlets.

In making its decision, the Court considered and rejected the argument that the media outlets needed to have knowledge of the defamatory matter, and the intention to communicate it. The third-party comments were able to be communicated through the existence of the posts and social media pages. The media outlets not only facilitated the ability to make and share the comments, but encouraged it, thus were liable as publishers.

The implications of this decision span far beyond this case alone.  While it is a welcome development for those advocating against online bullying, it will, rightly or wrongly, force the media outlets to either disable comments all together, significantly decreasing the benefit of posting the article on the platform, or using significant resources to monitor each and every comment on all posts, of which the vast majority merely report fact as they occur.

With defamation laws ever changing, it is getting more and more difficult for keyboard warriors to hide behind the screen.