Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller

1. [1]

   BASTEN JA: In July 2017, Dylan Voller (plaintiff), commenced proceedings against three media companies, Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd (defendants) claiming damages for defamation, based on the content of third party posts on their Facebook pages. In broad terms, the proceedings raised four questions, namely:

2. [2]

   The defendants took the view that if a negative answer were given to (a), the proceedings would be dismissed. Although no party filed a notice of motion seeking the formulation of a separate question to be determined before other issues, an informal agreement was reached that that course should be adopted. On 13 December 2017 McCallum J made the following order:

3. [3]

   In the course of the hearing on 6 February, the judge raised the question of the scope of the separate question. Again by informal arrangement, the question was more precisely identified by the parties as follows:

4. [4]

   In a judgment delivered on 24 June 2019, Rothman J answered that question “Yes”. [1] He also considered in the course of his reasons whether the defendants were “first or primary distributors”, or “subordinate distributors” for the purposes of the defence of innocent dissemination, under s 32 of the Defamation Act 2005 (NSW). He made findings (though not reflected in any order of the Court) that the defendants were first or primary distributors and that, accordingly, the defence of innocent dissemination was not available to them.

5. [5]

   The defendant in each of the three proceedings has sought leave to appeal from the determination of the separate question. [2] The grounds in each draft notice of appeal also sought to challenge the additional findings, together with a further finding of fact that the defendants could “hide” all comments on a public Facebook page. The grounds of appeal in all three proceedings read as follows:

6. [6]

   The plaintiff (the respondent in this Court) accepted that the judge was in error in purporting to answer questions other than the separate question (ground 2) and was in error in making a finding as to the proper characterisation of the defendants (the applicants in this Court) for the purposes of s 32. Accordingly, the parties were agreed that this Court should make clear that the trial judge will not be bound by the findings made by the primary judge in the paragraphs referred to in grounds 2 and 3. The particular factual finding identified in ground 4 should fall away on the same basis: it was irrelevant to the question for separate determination and, for reasons which may be briefly noted, may have resulted from a misunderstanding of the evidence.

Intervention

1. [7]

   On 23 August 2019 three other media companies, being Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd, sought leave to intervene in the proceedings, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 6.24. In the alternative, they sought to appear as amici curiae, either in support of the appeal or, alternatively, “on the issue of whether a corporation which maintains a Facebook or similar page which permits third parties to post comments on the said page, is liable as a publisher of those comments in circumstances where it is not on notice of the comments or the content thereof.” The argument sought to be put was articulated in written submissions filed in advance of the hearing.

2. [8]

   The interveners sought to raise a question not raised by the defendants, namely whether the claim in defamation was subject to the Broadcasting Services Act 1992 (Cth), Sch 5, cl 91. [3] If that were so, the laws of the State relating to defamation, in so far as they were inconsistent with the Commonwealth Act, were invalid to the extent of the inconsistency, pursuant to s 109 of the Commonwealth Constitution. On 17 October 2019 the interveners served a notice under s 78B of the Judiciary Act 1903 (Cth) on the Commonwealth, State and Territory Attorneys. None has sought to appear.

3. [9]

   At the hearing of the application for leave to appeal on 17 December 2019, the Court granted leave to the interveners to appear on the hearing. Their role was properly that of amici, in accordance with the principles set out in Roadshow Films Pty Ltd v iiNet Ltd [No 1]. [4]

4. [10]

   If the Commonwealth law were engaged, it could affect the formulation of any available cause of action in defamation and thus affect the answer to the separate question. The answer would indirectly affect the interests of other media companies operating in Australia who used public Facebook pages in a similar way to the defendants and thereby presented internet content to the reputedly 15.6 million Australians with Facebook accounts. [5] The arguments they sought to present went to the heart of their potential liability in defamation arising from third party posts to their Facebook pages. The defendants had not raised, and did not propose to address, the issue.

5. [11]

   The issue could not be dismissed as having no reasonable prospects of success, given the brief discussion of the scope of the Commonwealth provision in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim. [6] It might seem anomalous to determine the existence of an element of the tort of defamation without first determining the legal limits of the tort in the circumstances revealed by the plaintiff’s pleading. It is appropriate to identify the issue, but, because it was not raised by the parties, it cannot affect the outcome of this appeal.

Operation of Commonwealth law

1. [12]

   The operative provision of the Broadcasting Services Act, Sch 5, cl 91, relied on by the amici, is, relevantly, in the following terms:

2. [13]

   Of the terminology used in cl 91, namely “internet content” and “internet content host”, the following definitions appear in cl 3:

3. [14]

   The term “data storage device” is defined in cl 3 to mean “any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.” The term “internet carriage service” is also defined, in terms which cover a “carriage service” between a point in Australia and one or more other points, either in or outside Australia. [7] A “carriage service” means “a service for carrying communications by means of guided and/or unguided electromagnetic energy.” [8] (This language is adopted in the definition of “electronic communication”, a term found in the definition of “matter”, in s 4 of the Defamation Act.)

4. [15]

   Finally, the issue of legislative intention with respect to possible inconsistency is addressed in cl 90, which provides:

5. [16]

   The mandatory language of cl 91 allows for little operation of cl 90 with respect to this part of Sch 5; indeed, cl 91 identifies the scope of its own operation with respect to State and Territory laws. To the extent that a State law prescribes otherwise, the Commonwealth law will be paramount or supreme, both by virtue of covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (UK), and s 109 of the Constitution which, in this respect, double up. [9] Covering cl 5 states that all Commonwealth statutes “shall be binding on the courts, judges, and people of every State …”.

6. [17]

   It follows that a provision of a State law (whether a statute or the general law) which imposes liability on an internet content host for defamation in the circumstances covered by cl 91 will, to that extent, have no effect. The material questions are whether (i) a party was an “internet content host” with respect to the third party posts containing material complained of, and (ii) in respect of hosting particular internet content, was it “not aware of the nature of the internet content”.

(a) “hosting” internet content

1. [18]

   Fairfax Digital dealt with interlocutory orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW) preventing dissemination over the internet of material referring to unlawful conduct by accused persons in a pending criminal proceeding. The Court held:

2. [19]

   In the course of reaching that conclusion, the Court addressed a submission that the media companies did not “host” internet content to the extent that they produced the content themselves. [10]

3. [20]

   Arguably the submission referred to in Fairfax Digital at [86], that because the term “host” was not defined it should be given its meaning in ordinary parlance, should be rejected. Like many terms used in describing the operation of the internet, common usage provides no more than an analogy from the visible world. Such analogies may be not merely inapt, but misleading. It need not be inferred from the fact that one does not “host” members of one’s own family, that hosting on the internet does not describe the use of a website or platform to store the operator’s own content. Rather, an operator which stores data in a form which is then accessible to its customers, or the public at large, “hosts” that data. In the language of the internet, the ultimate source, author or creator of the data is irrelevant.

4. [21]

   Further, although the legislation uses the terms “internet content host”, “internet service provider” and “internet carriage service”, individual entities may fall within more than one category. Thus, as noted in Roadshow Films Pty Ltd v iiNet Ltd [No 2], [11] a copyright case, iiNet was both a carriage service provider and an internet service provider. The question in that case, not presently relevant, was whether iiNet had breached the copyright held in films by failing to prevent its customers operating a computer program (BitTorrent) to share films, in breach of copyright. Nevertheless, the legislation involving amendments to the Copyright Act 1968 (Cth) by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) is material because its enactment was almost contemporaneous with the 1999 amendments, which inserted Sch 5 into the Broadcasting Services Act. Although it did not deal with “publication” in terms, the 2000 amendments to the Copyright Act were directly concerned with the concept of “communication” of copyright material and the potential liability of parties providing the physical facilities for such communications. [12] In concluding that iiNet did not authorise infringements of copyright which took place via its servers and carriage service, the majority reasons noted that “iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material.” [13] To similar effect, Gummow and Hayne JJ noted the concession by the appellants that “iiNet itself could not take down the infringing material because it was not acting as host”. [14] It appears from such cases (and the earlier Federal Court judgments discussed in Roadshow Films), that the operator of a website or page on a platform which is able to control the content it makes available to internet users is properly described as hosting that content. Such an entity would therefore fall within that part of the definition of “internet content host”.

(b) hosting “in Australia”

1. [22]

   The second element in the definition of “internet content host” (set out at [13] above), requires that a person host internet content “in Australia”. There is an element of ambiguity in relation to this geographical requirement. On one view, it could require that the data be stored on a server in Australia. That reading might obtain some support from the terms of cl 40 in Sch 5 which confers power on the eSafety Commissioner to refer content to law enforcement agencies where the Commissioner is satisfied that “internet content hosted outside Australia is prohibited content …”. That inference may be drawn because the Commissioner is given power to serve a notice on internet service providers with respect to such content. Nevertheless, cl 40 is itself ambiguous and could be concerned with hosts who are themselves outside Australia and therefore outside the immediate control of local authorities.

2. [23]

   The alternative reading of the geographical reference in the definition of “internet content host” in Sch 5, cl 3, is that it identifies a person in Australia who does hosting. When applying the definition in cl 91, which deals with liability of an internet content host or internet service provider under the law of a State or Territory, it may be inferred that Parliament was dealing with local laws applicable to persons amenable to the jurisdiction of local courts, in contrast to internet content hosts or service providers who have no presence in Australia.

3. [24]

   To treat the geographical element as referring to the physical location of the server on which data is stored would be to adopt a meaning (i) without direct relevance to the statutory purpose, (ii) requiring information which will be unknown to a putative plaintiff, and (iii) which may be variable over time and possibly incoherent.

4. [25]

   Many aspects of internet usage have changed since the enactment of Sch 5 in 1999. Social media platforms, for example, were at best in their infancy; Facebook did not exist; it is said now to have 15.6 million users (probably referring to accounts) in Australia. Nor was there reliance on “cloud” computing, which allows internet users, particularly businesses, to avoid the need for sophisticated and expensive data storage facilities by contracting that function to special storage entities. To know where a particular entity’s data centres are physically located will not necessarily determine where a particular internet user’s information, or hosted content, is physically stored. Indeed, it may be stored in more than one location. To require a person seeking to rely upon a State defamation law to identify where the defendant’s hosted content is physically located in order to know whether cl 91 is engaged would be impractical. Nor were these problems unappreciated, at least in principle, in 1999. As the Report which preceded the 1999 Amendment Act stated: [15]

5. [26]

   In Dow Jones & Co Inc v Gutnick, [16] the High Court considered the following submission as to where an online article was published.

6. [27]

   The Court held that publication causing damage to reputation occurs when material was available in comprehensible form, that is when the matter in electronic form is downloaded onto the computer (or other mobile device) of the person who has used a browser to download the material from the web server. [19]

7. [28]

   The relevance of Dow Jones in this context is not to identify when and where publication occurred, but merely to note that the potential arbitrariness of the location of the server from which a defamatory publication was downloaded was understood at the time of the enactment of Sch 5 of the Broadcasting Services Act. Accordingly, the better view may be that the Parliament did not propose that cl 91 operate with respect to potentially adventitious and opportunistic considerations, but rather was engaged where the host of the internet content undertook its hosting function within Australia.

8. [29]

   A further factor to be taken into account is that the law of a State or Territory identified in cl 91 will continue to operate in respect of the internet content host who is aware of the nature of the internet content. Given that it is the state of mind (including the state of mind of an individual attributed to a corporation) which is the primary criterion of operation in cl 91, the sensible result is that an overseas media company such as Dow Jones, which operated from New Jersey, USA is not an “internet content host” for the purposes of Sch 5 because it did not host material in Australia.

9. [30]

   It would seem to follow that a publication on the internet can only give rise to liability under New South Wales law with respect to defamation if the publisher in Australia was aware of the nature of the particular content. To that extent, State law will operate concurrently with Sch 5 of the Broadcasting Services Act, pursuant to cl 90, but not otherwise.

(a) publication on the internet

1. [31]

   This question was identified as a separate question, determined in the Common Law Division and argued on appeal without reference to cl 91 of Sch 5 of the Broadcasting Services Act and with limited reference to the operation of the Defamation Act. It must be answered on that confined basis.

2. [32]

   With respect to the terms of the Defamation Act, regard was had both in submissions and by the primary judge, only to the existence of a defence of innocent dissemination under s 32(1). However, the purpose of referring to s 32 was to consider the dichotomy upon which the provision in part relied between a “first or primary distributor” and a “subordinate distributor”.

3. [33]

   Several provisions of the Defamation Act were relevant. First, s 6 identifies the subject matter of the Act as “the tort of defamation at general law” and 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).” The Act does not directly deal with publication, but identifies “matter” to include communication by means of the internet and by any other form of electronic communication, that is “by means of guided or unguided electromagnetic energy”. [20]

4. [34]

   The express reference to the internet and forms of electronic communication require that other provisions of the Act must be read, so far as possible, as embracing publication by means of electronic communication, including by the internet.

5. [35]

   Secondly, s 32 provides:

6. [36]

   Section 32(3)(f) deals with providers of services, including by “the operation of, or the provision of any equipment, system or service, by means of which the matter is … made available in electronic form”. Such a service provider, may be either a primary or a subordinate distributor, but not both: subs (2)(a). Subsection (3) provides a list of conventional subordinate publishers, for the negative purpose of saying a person is “not the first or primary distributor of the matter merely because” it falls within one of those categories. In most cases, subs (3) is likely to have no determinative effect; nevertheless, it demonstrates that such service providers fall within the terms of the provision and must be capable of being publishers.

7. [37]

   Further, s 32(1) assumes that publication of defamatory matter has been established and provides a defence defined by reference to the capacity in which the defendant published. In terms, it is a defence against liability, not a denial of publication.

8. [38]

   There are general law authorities which may be read inconsistently with that conclusion. Thus, in Lee v Wilson and Mackinnon [21] Dixon J, in explaining why the actual intention of a publisher was not an element of the tort, stated:

9. [39]

   There is a difference of opinion in the authorities as to the effect of the general law defence of “innocent dissemination”, a term first used (it appears) in Emmens v Pottle. [22] In stating the elements of the defence, Romer LJ in Vizetelly v Mudie’s Select Library Ltd [23] said that, upon proof of the identified elements, the defendant may be held “not to have published” the defamatory matter. While the language of Dixon J in Lee v Wilson may have reflected that view, it has since been abandoned in Australia. Brennan CJ, Dawson and Toohey JJ in Thompson v Australian Capital Television Pty Ltd [24] noted the view 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.”

10. [40]

    Although the English Court of Appeal in Tamiz v Google Inc [25] adopted the “non-publication” reasoning, that approach was emphatically rejected by the Hong Kong Final Court of Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd. [26] As to the general law position in Australia, the reasoning in Thompson must prevail; as to statute, the language of s 32 is inconsistent with the non-publication approach.

11. [41]

    Thirdly, s 32(1)(b) assumes that the defendant may have published the matter which it neither knew nor ought reasonably to have known was defamatory. On one view, adopted by the plaintiff, that language was consistent with the element of publication being a matter of strict liability; on the view adopted by the defendants, the provision was directed not to knowledge of the matter complained of, but to knowledge of the defamatory quality of the matter. Either reading is supportable and this particular provision does not assist in identifying the sufficient elements of publication.

12. [42]

    The defendants’ submissions in this Court were that to be publishers, they must have been instrumental to, or a participant in, the communication. They relied upon the following statement adopted by Isaacs J in Webb v Bloch: [27]

13. [43]

    As the defendants noted, that passage was cited with approval in Trkulja v Google LLC, [28] although, it should be added, for the purpose of explaining that it was not necessary for the plaintiff to plead whether Google was a primary or secondary publisher, or to plead the degree of participation in the publication.

14. [44]

    The defendants also relied upon the principle underlying the following statement in Dow Jones v Gutnick:

(b) participation in publication by third party

1. [45]

   The defendants submitted that they did not make the defamatory posts available to the public, nor did they participate in the publication of the defamatory posts, nor were they in any relevant sense “instrumental” in the publication of the defamatory posts. Rather, they administered a public Facebook page on which third parties published material. Perhaps with a degree of hyperbole, they submitted that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author. The defendants adopted a passage from the judgment in Oriental Press dealing with the position of a golf club sued on the basis of a defamatory poem posted on its noticeboard, and a building owner with defamatory graffiti placed on a wall, but did not adopt the outcome in that case. The passage the defendants accepted was as follows:

2. [46]

   However, in a passage cited with approval in Trkulja, [29] Ribeiro PJ in Oriental Press distinguished those cases from that of an internet platform provider, hosting a discussion forum. With respect to the latter he stated:

3. [47]

   The defendants sought to distinguish this finding on the basis that they had played no such active role in relation to the postings on their Facebook page. The point of distinction may be accepted; however, it does not follow that they were not publishers. They 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. Applying the general law as qualified by the provisions of the Defamation Act, including s 32, the primary judge did not err in concluding that, in the circumstances revealed in the evidence, the defendants were publishers of third party posts on their Facebook pages.

Scope of separate question

1. [48]

   As noted above, the separate question was fixed for hearing (although not then adequately formulated) before judgment was delivered by the High Court in Trkulja. Mr Trkulja had commenced proceedings in the Supreme Court of Victoria against Google LLC, a company domiciled in the United States. The basis for his claim in defamation was that a Google search engine generated defamatory material about him. Originating process was served on Google in the United States and the company both sought to set aside the service out of the jurisdiction and have the proceedings summarily dismissed. The primary judge rejected Google’s contention that the proceedings had no real prospect of success on the basis that Google had not published the product of the search by its search engine. The Victorian Court of Appeal dismissed Google’s submission that there was no arguable case that it published the material, but upheld a submission that the plaintiff would have no prospect of establishing that the images generated were defamatory of him. That decision was reversed by the High Court. In the course of its reasons, the High Court dealt with the manner in which the Court of Appeal had dealt with the question of publication, stating (omitting references):

2. [49]

   In the present case, there was discovery, presumably to the satisfaction of both sides of the record, prior to the hearing of the separate question. Further, witnesses were called and cross-examined. In my view, it would not have been inappropriate to deal with the question of publication as a separate question, were that all that was in issue. It was correct for the parties not to seek to determine by way of a separate question the characterisation of the defendant’s roles as primary or subordinate distributor, for the purposes of s 32 of the Defamation Act. As noted in Trkulja, that issue should not have been addressed prior to the defendants pleading their defences. It follows, as both parties submitted in this Court, that the primary judge was in error in dealing with the additional issues. Not only did they not form part of the separate question, which was not amended to allow such considerations, but it would have been inappropriate for it to be so amended.

3. [50]

   The parties were united in their view that, in any further proceedings in the Common Law Division, neither side would be bound, nor should the judge give effect to, any findings made by the primary judge with respect to the characterisation of the defendants for the purposes of s 32 of the Defamation Act, nor as to the availability to any defendant of a defence under s 32. Consistently with the acceptance of that view in this Court, it is appropriate that the answer to the separate question be expressed in terms which reflect that outcome.

4. [51]

   It is necessary to deal briefly with ground 4 in the notices of appeal. There was extensive evidence below, the bulk of which was not contentious, in relation to the capacity of the operator of a Facebook page (i) to prevent the posting of comments by third parties, (ii) to delete individual comments or posts, and (iii) to “hide” comments until they could be reviewed by an administrator. With respect to (i), the Facebook platform did not allow a host to prevent all posts on a public Facebook page. With respect to (ii), deletion after the event was undoubtedly possible and occurred when the defendants were notified of the concern as to the content of particular posts. Deletion did not, of course, prevent publication. With respect to (iii) it was common ground that Facebook permitted the filtering of posts by its own generic filters and by the administrator applying customised filters. By using common words, a filter could be designed which would “hide” most, if not all, posts. There was disagreement as to whether, with sufficient ingenuity, all posts could be hidden. It was not, however, disputed that the effect of “hiding” a post was to prevent publication to all except the administrator and the commentator’s own Facebook friends. The posts so hidden could then be individually assessed for defamatory content.

5. [52]

   The challenged passage in the judgment read as follows:

6. [53]

   The judge also found that “it is impossible to delete in advance all comments to a particular extract” [30] and that “[b]y using a list of extremely common words, which any comment would be difficult to avoid, it is possible to hide, in advance, all, or substantially all, comments”. [31] It is true that the qualified terms of these findings had lost their qualification when restated at [223]. Any further hearing of the matter might, if the issue arose, have to resolve that inconsistency, if the findings were allowed to stand. However, as the matter has no relevance for present purposes, it is not necessary for this Court to resolve the inconsistency. The matter would only be relevant if a defendant ought to have anticipated that there would be defamatory comments in relation to a particular article posted by it and, if so, what it would reasonably be expected to have done in advance of any posting by a third party, to prevent defamatory comment being displayed. Whether this will ever be a live issue is unclear. It would depend upon the proper construction of s 32 and on any pleading of a defence under that provision (and, if raised, the operation of the Broadcasting Services Act). Nothing further need, or should, be said in relation to this matter.

Conclusion

1. [54]

   On the limited basis upon which this appeal was conducted, the applicants have failed to demonstrate error in the affirmative answer given by the primary judge to the separate question. As the issue raised was one of some importance in a developing area of the law of defamation the applicants should have leave to appeal. However, the appeal must be dismissed with costs.

2. [55]

   The Court should make the following orders:

   1. (1)

      Grant the applicants leave to appeal from the answer given to the separate question in the Common Law Division on 24 June 2019.

   2. (2)

      Direct that the draft notice of appeal in the white folder be filed within 7 days.

   3. (3)

      Dismiss the appeal.

   4. (4)

      Order that the applicants pay the respondent’s costs of the proceedings in this Court.

3. [56]

   MEAGHER JA and SIMPSON AJA: The substantive proceedings before this Court are applications by Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel Pty Ltd under s 103 of the Supreme Court Act 1970 (NSW) for leave to appeal from the primary judge’s answer to a separate question ordered for decision under Uniform Civil Procedure Rules, r 28.2. The question arose in defamation proceedings brought against each of the applicants, in respect of comments posted by third parties on its public Facebook page. The separate question was:

4. [57]

   In answering the separate question the primary judge expressed views about matters going beyond the issue of publication.

5. [58]

   We agree with Basten JA that the applicants should have leave to appeal. The grounds of appeal are:

6. [59]

   The only ground relevant to the determination of the separate question is ground 1. Grounds 2, 3 and 4 are directed to observations and findings that were not relevant to the disposition of the separate question, but may be relevant to issues arising on the filing of defences. That has not yet occurred.

7. [60]

   Two particular findings are the subject of grounds 3 and 4. At [228] the primary judge expressed the view that “the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher”. That holding, if made in respect of an issue arising on the pleadings and before the primary judge for decision, would be fatal to the availability to the applicants of a defence of innocent dissemination under Defamation Act 2005 (NSW), s 32. And at [29] and [213] the primary judge appears to have made findings that the applicants had the capacity to block or hide third party comments on their public Facebook pages, a matter which is contested and potentially relevant to the availability of the same defence.

8. [61]

   With the benefit of the exchange of written submissions in this Court the parties agreed, correctly in our view, that the primary judge was in error in dealing with these additional matters and that his observations or findings in doing so were not and could not be binding on them. There remained, with respect to ground 4, a contest as to whether his Honour had found that the publishers of a public Facebook page were able to block or hide all, rather than substantially all, comments posted on that page by third-parties. As Basten JA observes, it is not necessary for this Court to resolve that contest.

The Bauer parties’ application to intervene

1. [62]

   Prior to the hearing of the appeal, three unrelated media companies – Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd (“the Bauer parties”) – sought leave to intervene, and, alternatively, to appear as amici curiae. They did so “in support of the appeal” or alternatively on the question whether the applicants’ claims in defamation were subject to the Broadcasting Services Act 1992 (Cth), Sch 5, cl 91.

2. [63]

   On the hearing of that application the Court announced that it would hear senior counsel “on the arguments”. Ideally, a non-party application for leave to intervene or to be heard as amicus should be determined before the commencement of the relevant hearing. In this case that did not occur. However having considered the merits of that application it is our view that it must be dismissed. Ultimately, there was no purpose or utility in granting the Bauer parties leave to intervene or to be heard on a question that was not raised in the appeal, and is not presently an issue in the underlying proceedings or one which could have any bearing on the outcome of the applications before this Court.

3. [64]

   As the applicants succinctly observed in their written submissions:

4. [65]

   The question whether Mr Voller had established “the publication element of [his] cause of action of defamation” did not address the application or operation of cl 91. That is not surprising, in circumstances where the applicants have not yet been required to file their defences, and have reserved their position with respect to reliance on that provision.

5. [66]

   Focussing on the separate question, it was not suggested that the Bauer parties were subject to any defamation claims in which the same or a similar publication issue arises. Nor is it said that their legal interest in the outcome of that issue might be indirectly or contingently affected “following from the extra-curial operation of the principles enunciated” in the decision of this Court: cf Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54 at [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) and Levy v State of Victoria (1997) 189 CLR 579 at 601-602 (Brennan CJ); [1997] HCA 3.

6. [67]

   In any event, the Bauer parties must be treated as having abandoned the part of their application seeking leave to be heard “in support of the appeal”. During the course of his argument senior counsel for those parties submitted that the primary judge had not erred in finding the applicants were publishers, describing that question as a “no-brainer”.

7. [68]

   Rather what the Bauer parties apparently sought was that this intermediate appellate court would decide, in proceedings to which they were not parties, an issue involving questions of construction and of fact, which was not before the Court and not pleaded or raised as between the parties. Furthermore, they sought that it do so before the time for the filing of defences, and accordingly in circumstances where it was still open to the defendants to plead and rely on the application of cl 91.

8. [69]

   The Bauer parties’ application had no merit and should be dismissed. As it was not opposed we do not propose that there be any separate order in relation to the costs of that application.

Ground 1

1. [70]

   Each of the applicants is a mass media publisher of newspapers circulating in NSW and/or the operator of television stations. Each places on its public Facebook page, for communication to Facebook users via the internet, “posts” usually consisting of a comment, image and headline relating to a news item in one of its paper or digital publications and invites comments from Facebook members which when made appear on the Facebook page and are available to be seen by all Facebook users “who can see the page” ([8]). Under each such news item and image appeared the following invitation:

2. [71]

   In each proceeding the respondent claimed that comments posted by certain Facebook users conveyed imputations that were defamatory of him, and that the applicants were liable as publishers of those comments. By way of example, in his second amended statement of claim served on Nationwide News, the respondent pleaded that between December 2016 and February 2017 Nationwide News placed on its Facebook page a news item and photo concerning his incarceration in a juvenile justice detention centre in the Northern Territory, and that, following that publication, a number of individuals responded with comments that defamed him.

3. [72]

   The respondent pleaded the “matter complained of” as including the image and accompanying words placed by Nationwide News on the Facebook page. However no issue arose in relation to any liability of an applicant for the separate publication of that image and accompanying words.

4. [73]

   The respondent particularised his claim that Nationwide News was a publisher in a number of ways. He alleged, inter alia, that Nationwide News:

5. [74]

   Similar claims are made against each of the applicants. None has filed a defence. Rather, each sought to have the publication question determined first.

6. [75]

   Before the primary judge the respondent relied on a report of Mr Ryan Shelley (the managing director of a social media and digital marketing agency) explaining the use of Facebook by media outlets.

7. [76]

   Mr Shelley said that the use of Facebook encourages and facilitates ‘visits’ by Facebook users to a media outlet’s own websites. The number of such visits is measured for the purpose of aiding negotiations with potential advertisers. Mr Shelley added:

8. [77]

   The reference to the or a Page administrator is to a person authorised by the “brand, entity (place or organisation) or public figure” for whom the public Page has been created to administer it in accordance with the Facebook terms of use. Mr Shelley also addressed, in some detail, the capacity of Page administrators to “hide and/or delete” comments after they have been posted. It is not necessary to address that evidence in disposing of the appeal.

9. [78]

   Each applicant responded with evidence explaining how it managed its Facebook page. It is sufficient to refer to the evidence filed on behalf of Nationwide News, as there is no presently material difference between its position and that of the other applicants.

10. [79]

    Nationwide News relied on an affidavit of Ms Brighette Ryan, a journalist employed as ‘Digital Night Editor’ of The Australian newspaper. Ms Ryan annexed to her affidavit three documents, going by the description:

11. [80]

    The Statement of Rights and Responsibilities commences:

12. [81]

    Clause 2, under the heading Sharing Your Content and Information, includes:

13. [82]

    Clause 17 defines Information to mean:

14. [83]

    The Facebook Pages Terms include:

15. [84]

    Ms Ryan’s evidence included:

16. [85]

    Ms Ryan described the process of using the public Facebook Page. Nationwide News posts a news item and image which includes a hyperlink to the relevant story on The Australian Website. Clicking on the hyperlink takes the reader to that story. Before or after doing so, the reader may ‘react’ to the story by selecting from a limited range of emojis signifying different responses. Each post also automatically includes options for readers to “Like”, “Comment” on or “Share” that post. These options are features “inherent” in every Facebook page. Ms Ryan said there is no way of preventing users from commenting by disabling this feature.

17. [86]

    The Page administrator (cl I A) has a limited ability to restrict comments before they are posted by users. The means by which they might do so include blocking specific words or phrases by use of a “profanity filter”, banning specific users from posting comments and compiling lists of words (“moderated” words) which when included in a posted comment will automatically be ‘hidden’ from public view until the administrator chooses to ‘un-hide’ those comments. Comments may also be hidden or deleted after posting. However those comments would remain accessible to Facebook ‘friends’ of the user who posted the comment.

18. [87]

    Ms Ryan’s affidavit was in part directed to the proposition that, once a public Facebook page is established, the entity permitted to use it has little or no control (at least in practical terms) over what is posted by users of Facebook. Accordingly, so the proposition appeared to be, notwithstanding that Nationwide News (like the other applicants) has established and maintained a public Facebook page, to which it invites and actively encourages participation and contribution from Facebook users, it bears no responsibility for publication of the content of any of their contributions. In relation to Nationwide News’ newspaper’s capacity to control or supervise the content of the reader’s comments when first made, Ms Ryan deposed:

19. [88]

    Defamation is an actionable wrong that lies in the publication to a reader, listener or observer of matter that injures another person’s reputation. It is a tort of strict liability, in the sense that a publisher of defamatory imputations will be liable even in the absence of any intention to cause injury to reputation, and even if the defendant acted with reasonable care: Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 288 (Dixon J, as his Honour then was); Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Unless material is communicated to another person there is no publication. Accordingly (Dow Jones v Gutnick at [26]):

20. [89]

    The tort has its origin in the common law but in New South Wales is now, to a large extent, regulated by statute. Defamation Act 2005 (NSW), ss 6(1) and (2) provide:

21. [90]

    That Act contains no definition of “publication”, and accordingly whether there has been publication is to be determined according to well-established common law principles understood in the context of the provisions of the Act. Section 4 acknowledges that those principles are to be applied to publication of matter relevantly including a program, report, advertisement or other thing communicated “by means of television, radio, the Internet or any other form of electronic communication”. Section 32, which provides a statutory defence of innocent dissemination, and in that context distinguishes between a “first or primary distributor” and a “subordinate distributor” of defamatory material, makes plain that the defence is to the “publication” of defamatory matter. Accordingly the “confusion” arising in relation to the common law defence of innocent dissemination and whether it justifies or justified a plea of “never published” does not arise in relation to the statutory defence. As to that confusion, see the discussion of Brennan CJ, Dawson and Toohey JJ in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 585-586; [1996] HCA 38 and of the Hong Kong Court of Final Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 at [24]-[31] (Ribeiro PJ, Ma CJ, Chan PJ, Litton NPJ and Gleeson NPJ agreeing).

22. [91]

    In relation to the innocent dissemination defence under the common law, in Lee v Wilson & MacKinnon Dixon J said:

23. [92]

    Dixon J’s statement that any participation of the innocent disseminator, which might otherwise constitute publication, “does not amount to publication of a libel” is perhaps ambiguous and to be understood as meaning that the innocent disseminator, although a publisher, is not liable in law for any defamatory imputations conveyed by that publication. There is a distinction between responsibility for publication and liability for the communication of the defamatory content of the publication. In this context we cannot, with respect, agree with Basten JA (at [39]) that, reading Dixon J as adopting the “never published” analysis, any such principle should be taken to have been abandoned in Australia. True it is that, in Thompson v Australian Capital Television Pty Ltd the plurality noted the reformulation of the relevant principle proposed by the authors of Duncan & Neill on Defamation (2nd ed, 1983) p 110, fn 3 as follows:

24. [93]

    None of this is presently relevant, the applicants not relying on the “never published” principle as an answer to the separate question, no doubt because they accepted that they are not in the same position as, nor any position analogous to “book sellers, news vendors, messengers, or letter carriers”, all of whom, it may be said, facilitate the publication of defamatory material after it has been composed and ordinarily without actual or constructive knowledge of any defamatory content. Here, the third parties’ composition, comment and publication occur without any further and specific acts of participation by the applicants. That is because the facility subscribed for and used by the applicants enables all of that to occur without their further intervention. In those respects that facility is similar to one offered by a talk-back radio station broadcasting live commentary from listeners on the telephone.

25. [94]

    The classic statement in this country of what constitutes publication remains that of Isaacs J in Webb v Bloch (1928) 41 CLR 331 at 363-4; [1928] HCA 50:

26. [95]

    Although the applicants’ written submissions query the correctness of aspects of the commentaries in the 5th edition of Folkard and 2nd edition of Starkie it is not necessary to engage with them in that respect in view of the continuing acceptance of the correctness and application of Isaacs J’s description of the meaning of the term “publication”, as confirmed in Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

The applicants’ contentions

1. [96]

   In oral argument the applicants formulated the relevant question as being whether it could be said of them that “they were instrumental, that they participated to some degree, in the actual publication of the [third party] defamatory comments”. Their argument in support of the conclusion that they did not has a number of strands.

2. [97]

   First, it is said that not every person who plays a “but for” role in the communication of defamatory material participates in the publication or “makes it available” (the language in Dow Jones v Gutnick at [26]); and that not every person who is aware of a risk that something they do will give rise to defamatory comment is a publisher. Each of these propositions may be correct. However neither engages with the relevant question.

3. [98]

   The applicants separately subscribed to a facility which in the case of Nationwide News permitted it to have and use an ‘official’ Facebook page for the Australian newspaper administered by its authorised representative. The content posted by Nationwide News to that page was “public and viewable” by users of Facebook. That content invited and encouraged such users to “Like” or “Comment” on it. The users did so via a “comment box” and that comment was displayed directly underneath the content to which it responded and was viewable by any visitor to the Page. Accordingly that relevant question is whether in subscribing for and using the Facebook page to make their own posts and the comment posts of other Facebook users “public and viewable” on the Page the applicants were instrumental and participated in the publication of those comments.

4. [99]

   In the course of argument senior counsel for the applicants ultimately accepted that if participation consisting of subscribing for the Page and inviting comments in response to posted news items (where those comments when made would be public and viewable on the Page) without more was as a matter of law “sufficient participation in the publication of that comment that you are a publisher” then the separate question was correctly answered.

5. [100]

   As has already been noted, having concluded that each of the applicants was a publisher ([190]) the primary judge went on to consider whether they were “subordinate or secondary publishers” for the purpose of the availability of the innocent dissemination defence under s 32. In that context his Honour discussed “control” (ability to prevent publication) and “ought to know” (knowledge or means of knowledge of defamatory matter). Those issues arise in determining whether a publisher is to be treated as a primary or subordinate publisher and, in the case of the latter, whether it has the benefit of that defence.

6. [101]

   The applicants argued in this Court that, whilst it was accepted that neither of these issues arose, there remained the spectre of the “ought to know” question and its relevance to publication. That was in part due to the respondent’s pleaded reliance on the following “particular of liability for publication”:

7. [102]

   In oral argument, the applicants maintained, relying in part on the existence of this particular as involving some form of concession, that the respondent’s case was that each had participated or been instrumental in the publication of defamatory matter because of what each “ought to have known and ought to have done” about the defamatory nature of the relevant comments.

8. [103]

   This argument does not address the publication question formulated in [96] above. Nor does it accord with the respondent’s submissions before this Court which accepted that what the applicants knew or ought to have known about the defamatory content of the comments was not relevant to whether each participated in their publication.

9. [104]

   Under the common law a person may be liable for publishing defamatory material if by an act or conduct he or she intentionally assisted in the process of conveying the words bearing the defamatory meaning to a third party: Oriental Press at [19] citing Dow Jones v Gutnick at [26]. There was no suggestion that the participation of each applicant in the publication of the users’ comments was not “intentional” in that sense. Each act relied on as constituting participation was undertaken knowing that an outcome of operating the Page was that any third party comment would be published to any Facebook user.

10. [105]

    Secondly the applicants submitted that the conclusion that they are liable for the publication of the third-party comments would involve the imposition of a “novel” tortious liability by reason of their failure to prevent publication by third parties. In our view that is not so.

11. [106]

    It is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person. For example in Webb v Bloch the members of a committee were held liable for a defamatory publication authorised by one member in circumstances where its content and falsity was not known to all of them. More to the point for present purposes are the cases involving actions brought against the owners or occupiers of premises in which unauthorised third parties have affixed defamatory statements on a noticeboard or scrawled such statements as graffiti on the walls of their premises. These cases include Byrne v Deane [1937] 1 KB 818, discussed in Oriental Press at [35]-[40], the decision of Hunt J in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Rep 81-127 and Frawley v State of NSW [2006] NSWSC 248.

12. [107]

    Addressing Urbanchich and Frawley, in each case the property owned by the defendant was used by a third party as a vehicle for the publication of defamatory imputations. There was no suggestion, in either case, that the defendant had, expressly or implicitly, invited the use of its property as a means of communication in the way that occurred. In each case the defendant was unaware of the use of its property for that purpose until notified of the existence of the posters (in the case of Urbanchich) or internet material (in the case of Frawley). In neither case could the defendant be said to have participated or been instrumental in the publication of the defamatory matter prior to their becoming aware that their property had been used for that purpose. They could, however, be said to have acquiesced in the continued publication of that matter from the point in time when they acquired that knowledge. Accordingly, in each case, failure to take steps to remove the material (Urbanchich) or to prevent access to it (Frawley) was sufficient to justify a finding that the defendant had thereafter participated in the continued publication.

13. [108]

    The applicants sought to distinguish Urbanchich on two bases. The first is that they do not own their relevant Facebook Page; and the second, that when their attention was drawn to the defamatory publications they were promptly removed. Neither of these points of distinction affects the outcome of the publication issue in this case.

14. [109]

    As to the first point of distinction, in relation to the use of a Facebook page ownership is an elusive and perhaps inapt concept. The evidence is clear that the relevant Facebook pages were created for and used by the applicants on the basis that Facebook users generally would be invited to post comments on the Page with the result that their comments would also be made available to Facebook users generally. In the language of Urbanchich at 69,193, by the terms of their arrangements with Facebook, and by their invitations to members of the public to comment on their news items, the applicants accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments. They did so from the time they made their Facebook pages available to those who wished to comment, and by actively inviting comment. It was the applicants who provided the vehicle for publication to those who availed themselves of it. The character of the applicants’ conduct relied on as constituting participation in publication is not affected by the lack of attribution of “ownership” to them of any part of the Facebook facility or service.

15. [110]

    The second point of distinction is immaterial because the applicants participated in the publication of the third party comments from the outset. The same analysis was undertaken and conclusion reached in relation to the publication by the internet discussion platform providers in Oriental Press at [50]-[52].

16. [111]

    Contrary to the applicants’ submission, the concept of publication and the fact that more than one party may participate in the making of material available for comprehension by a third party has nothing to say about the imposition of a liability on a person for the deliberate or negligent conduct of another party (see for example Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15). Each applicant’s potential liability as publisher arises not in any sense from a failure to take action to protect a class of persons from harm or to prevent a particular person from injuring any member of that class. Rather the effect of the principle confirmed in Trkulja v Google is that a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees.

17. [112]

    Finally, the applicants submitted that as users of Facebook in common with other users, they do not relevantly participate in a communication merely because another user of the same service posts defamatory comments. That may be so, however as the evidence shows, the applicants are not merely using a service provided by Facebook which is equally available to others for the purpose of publishing comments. The applicants subscribe for a specific Page and encourage and facilitate the making of comments by third parties which when posted on the Page are made available to Facebook users generally.

18. [113]

    In the result the primary judge did not err in answering the separate question in the affirmative.

Conclusion

1. [114]

   In addition to the orders proposed by Basten JA at [55] we consider the following order should be made: