Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021): defamation, publication of comments on social media

September 12, 2021 |

The High Court in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 with a 5:2 majority rejected an appeal by media outlets against a ruling that they were liable for comments to their articles on a Facebook page.


The appellants each maintain a public Facebook page on terms of use agreed with Facebook which:

  • is used to share content and connect with Facebook users.
  • is publicly accessible to users, who are able to view and comment on content posted to that page [5].

The use of the Facebook pages usually involves:

  • the posting of a hyperlink to a news story,
  •  a headline,
  • a comment
  • an image.
  • readers being invited to:
    • “Like”,
    • “Comment”  which are made by users appear on the page and are available to be seen by all Facebook users who can see the page
    • “Share” the post [6]

 Facebook Page administrator

  • could:
    • prevent, or
    • block,

the posting of comments by third parties

  • could not block all posts on a public Facebook page  [7].
  • could delete comments after they were posted but this would not prevent publication
  • could “hide” most comments, through the application of a filter, which would prevent publication to all except the administrator which could then be assessed by an administrator [7]

The trial judge found the appellants were publishers.




Their Honours, as did all judges in this decision, undertook a very comprehensive review of the development of defamation in general and the defence of innocent dissemination in particular.  In reviewing the principles of publication stated:

  • An action for defamation does not require proof of fault as it is a tort of strict liability [27]
  • the intention of the author of the defamatory matter is not relevant [27] & [29}
  • the publication rule has always been understood to have a very wide operation [31]
  • publication may involve acts of participation other than, and which may precede, the actual physical distribution of the defamatory material [35]

Regarding innocent dissemination their Honours stated that:

  • although a person may be prima facie liable as a publisher, if they are able to show that they did not know that the publication was likely to contain a libel and their lack of knowledge was not the result of their own negligence they will not be liable for the libel [37]
  • It is not that publication is to be taken not to have occurred [49].
  • it operates to except a defendant from liability who would otherwise have been liable as a publisher [49].


Their Honour’s agreed with the findings of  Keifel CH, Keane and Gleeson JJ [59] and made the following points, after a comprehensive review of the case law:

  • publication of matter by means of the Internet is  complete when and where the matter is accessed by a third party in a comprehensible form [61]
  • they supported the ratio on Webb v Bloch that every intentional participant in a process directed to making matter available for comprehension by a third party is a “publisher” of the matter upon the matter becoming available to be comprehended by the third party [62]
  • intentionally” means an intention to facilitate, or provide a platform for, communication of the allegedly defamatory matter. That means participation in the process is active and voluntary [66]
  • the advent of the Internet with a “disaggregation” of the process of publication and a shift from “one-to-many” publication to “many-to-many” publication does not warrant relaxation of the strictness of the common law rule associated with Webb v Bloch[86].
  • each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user because of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user [98]. The intentional participation in that process was sufficiently constituted by  posting content on the Facebook page the effect of which was automatically to give Facebook users the option to comment which (if not “filtered” so as to be automatically “hidden” if it contained “moderated words”) was automatically accessible in a comprehensible form by other Facebook users [98].
  • where the operator of an “electronic bulletin board” posts material with the intention that third parties will comment on the material posted, the operator cannot escape being a publisher of the comments of those third parties [104].



His Honour’s spirited dissent involved a very detailed history of how defamation developed, in particular the defence of innocent dissemination.

He stated:

  • the element of an intention to publish that is required is concerned with an intention to act rather than with any of the consequences of the act [115].
  • where a defendant requests another to publish a comment on a particular topic, the defendant will be liable for any defamation in the comment only to the extent that the publication was made “in pursuance of, and in accordance with, the request” and was not a departure from the request [138]
  • there was no basis in any of the evidence before the primary judge to conclude that by the (then mandatory) invitation to “comment” on their posted stories the appellants intended to publish remarks on anything and everything, however unrelated to the posted story. The “comment” button, which could not have been disabled, was not an invitation to third?party users to write any words about anything. The invitation to comment did not extend to third-party remarks whose connection with the subject matter of the posted story is so remote or tenuous that they could not meaningfully be described as a “comment” on the posted story. The appellants  had no common purpose for the publication of such remarks, which were not, in any meaningful sense, “comments” on the posted story.


Steward noted that concept of knowledge and control intrude into the concept of strict liability:

  • the defence of innocent dissemination [155]
  • in determining whether a person is a subsidiary publisher or subordinate distributor or a first or main distributor [156].
  • knowledge of the content of a defamatory communication is also relevant [157]
  • a lack of control can be relevant in determining whether a person participated in the publication of third?party defamatory material [158]

His Honour highlighted two issues that were determinative being:

  •  a person does not participate in the communication or conveyance of defamatory material merely because, “but for” something they did, there would have been no such communication or conveyance. Not every facilitator of a communication or conveyance of defamatory material is necessarily a participant in its publication [166]
  • some acts that facilitate communication of defamatory material may be “so passive” that they cannot constitute publication of that material [167]

Concepts of passivity, control and prior knowledge of defamatory content may be relevant to a factual determination as to whether a person has participated in the publication of a third party’s defamatory post or comment on Facebook. The mere act of posting by a Facebook page administrator is unlikely to justify, in and of itself, the factual conclusion that the administrator has  participated in the publication of all subsequent responses. More is needed to be a publisher [173]

Different considerations arise if it can be said that the Facebook page administrator procured, provoked or conduced the defamatory third?party response as distinct from any generally responsive posts. In such cases, a factual conclusion of participation in the publication of the defamatory comment is more likely to be justified [174].

Steward stated that the appellants only facilitated the publication of the third?party comments by:

  • creating their own Facebook pages; and
  • by making their own posts

neither of which made the appellants publishers of all third?party comments made on their respective Facebook pages [177]

Save for those posts that procured, provoked or conduced defamatory responses,  the appellants’ posts were  insufficiently connected to all the third-party comments made thereafter ito justify a conclusion that the appellants participated in their publication; the appellants’ posts cannot be characterised as “instrumental [179]


The majority took quite an orthodox view regarding both the concept of publication and the limited circumstances where the defence of innocent dissemination was available to the publisher.  As a consequence it is now clear that a pubisher can be held responsible for comments left by readers.  That will have a significant impact on the willingness or otherwise of media organisations to have a comment function.  Of course it is not uncommon to have moderators on Facebook and other social platform to edit or no publish comments.  It has been long the practice at News Limited for some stories not to have comments while others are moderated.  In that sense Chris Merritt’s complaint in the Australian that The trolls will no longer have to be held to account is a bit overblown. News Limited has developed policies to deal with trolls on its sites but now complains that a similar approach will have to happen on Facebook.  The Wall Street Journal has also taken an interest with Australia’s Top Court Finds Media Companies Liable for Other People’s Facebook Comments.

This decision has been described as having significant impact on the use of social media.  That is doubtful.  Some sites already moderate comments.  Similarly the court was not prepared to adopt the more generous and flexible exercise proposed by Edelman and Steward in determining whether a social media platform was a publisher.

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