New defamation risk for online publishers
A ground-breaking judgment from the New South Wales Supreme Court (NSWSC), making digital platform operators liable for defamatory third-party comments on their public pages, is bad news for media companies.
Justin Graham & Tom Cleary
And while the decision will almost certainly be appealed, pressure is mounting on the government to change Australia’s defamation law.
Here in New Zealand, the opposite applies. Platform hosts have immunity from liability for comments posted on their public platforms such as Facebook. But any law change across the Tasman could put that immunity at risk (more on this below).
Professor David Rolph, one of Australia’s leading defamation experts, says the decision changes the legal landscape for digital platform operators by going “further than any decision in the common law world holding intermediaries liable for defamation as publishers”.
Dylan Voller, a former detainee at a youth detention centre and now a high-profile justice campaigner, sued three major media groups for defamatory statements made about him on their public Facebook pages by members of the public.
In Voller v Nationwide News Pty Ltd & Ors the NSWSC found the media companies:
- were the publishers of the public comments, not “merely a conduit” for them;
- were responsible for the comments because they could have “hidden” them until they had vetted the content; and
- used Facebook for commercial purposes to drive internet traffic to their news sites, and so had assumed responsibility for the comments.
The NSWSC suggested administrators of public Facebook pages should be required to “hide” third party contributions pending a content check by developing a list of prohibited words, sufficient to cover any sentence (examples quoted by the court were all pronouns, the definite and indefinite articles, and/or all conjunctions and prepositions).
The decision has been widely criticised. The Australian newspaper, one of the defendants in Voller, wrote a scathing editorial, saying the court had shown “little practical understanding of how Facebook operates, the volume of material that works its way through public pages and the resources that would be required to undertake such prophylactic actions on a grand scale”.
New Zealand’s position
The NSWSC in Voller reached the opposite conclusion to the New Zealand Court of Appeal in Murray v Wishart 2014, a case covering similar ground.
The background: Chris Kahui, the father of the Kahui twins, was acquitted of their murder and had suggested during his trial that their mother, Macsyna King, was responsible.
This theory gained some currency among the general population, prompting freelance journalist Ian Wishart to collaborate with King on a tell-all book to establish her innocence.
Ahead of the book’s release, Chris Murray established a Facebook page Boycott the Macsyna King Book.
The page was active only a couple of months but attracted a number of negative comments about Wishart, who filed defamation proceedings against Murray.
The court found Murray had not published the statements and should not be liable for them unless he had actual knowledge they were defamatory and had failed to take them down.
Any other conclusion, the court warned, would place an undue burden on social media hosts and would represent an unwarranted intrusion on freedom of speech.
Since the Murray decision, Parliament has introduced a safe harbour for digital platform owners in section 24 of the Harmful Digital Communications Act 2015.
This gives them both civil and criminal immunity in relation to statements posted on their platforms by others provided, if they receive a complaint, they inform the statement’s author within 48 hours.
If no response is received within 48 hours of that notification, or if the author consents, they must remove the content.
If the author responds within the timeframe and refuses consent to the material being removed, it stays and the host’s responsibility is met.
Importantly, the protection in section 24 applies to defamation.
Could Voller apply here?
Both Australia’s and New Zealand’s defamation laws are based on the common law.
As a result, the Voller decision could impact the New Zealand position.
Indeed, the door was left open to this in Murray, where the Court of Appeal recognised that decisions about liability of internet hosts and platforms were highly fact-dependent.
What is more, in Voller the NSWSC discussed Murray v Wishart extensively.
The NSWSC suggested our Court of Appeal got it wrong but thought that, in any event, Murray was of limited relevance because of the distinction between Murray’s “private [individual] Facebook page”, which allowed no opportunity for pre-publication vetting, and the much more sophisticated and public Facebook pages run by media organisations for commercial purposes.
That said, we do not think the Voller findings should or could apply in New Zealand.
First, the court was clear in Murray v Wishart that New Zealand was following the English approach. This recognises internet platforms have little real control over externally-generated comments.
Second, unlike in Australia, freedom of speech is expressly protected by the New Zealand Bill of Rights Act 1990 which, as mentioned above, the court relied on in Murray v Wishart.
Third, and perhaps most importantly, if Voller applied, this would undermine the safe harbour in section 24 of the Harmful Digital Communications Act.
It would be illogical for digital platform owners to be liable for users’ comments only until a complaint was received and then to achieve immunity by complying with the required complaints process.
Expectations are that Voller will be appealed.
But industry leaders in Australia, aware of the dangers it creates, are now engaged in a coordinated campaign to pressure the Morrison government into law change to protect digital platforms.
If Australia changes its defamation law, New Zealand could follow suit.
Several possible solutions could be adopted in New Zealand to ensure operators of digital platforms are suitably protected by:
- broadening the innocent dissemination defence in the Defamation Act to incorporate section 24 from the Harmful Digital Communications Act; and/or
- making the defence technologically neutral by specifying that the defence extends beyond “processors” and “distributors” to the operators of websites; and/or
- codifying the Murray v Wishart decision by specifying that liability will apply only where it can be demonstrated the platform owner had knowledge that the site contained defamatory content and did nothing about it.
Justin Graham is a partner and Tom Cleary a senior associate at Chapman Tripp. Both specialise in litigation and dispute resolution.