1
KIEFEL CJ, KEANE AND GLEESON JJ.
The appellants, Fairfax Media
Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel
Pty Ltd, publish newspapers which circulate in New South Wales or operate
television stations, or both. They each maintain a public Facebook page on which
they post content relating to news stories and provide hyperlinks to those stories
on their website. They invite comment on the posted content from members of the
public who are Facebook users. Comments which are made appear on the
Facebook page and are available to be seen by other Facebook users.
2
In each of the three proceedings brought in the Supreme Court of New
South Wales, the respondent claimed that following the appellants posting about
particular news stories referring to him, including posts concerning his
incarceration in a juvenile justice detention centre in the Northern Territory, a
number of third-party Facebook users responded with comments that were
defamatory of him. He alleged that the appellants were liable as the publishers of
those comments.
3
The parties agreed to the terms of a question concerning the issue of
publication. The Supreme Court ordered that the question be decided separately
from the balance of the proceedings1. The question was whether the respondent,
the plaintiff in the proceedings, "has established the publication element of the
cause of action of defamation against the defendant[s] in respect of each of the
Facebook comments by third-party users". The appellants took the view that a
negative answer to the separate question would result in dismissal of the
proceedings.
4
The primary judge (Rothman J) answered the separate question in the
affirmative2. Each of the appeals from that decision was dismissed3.
Background facts
5
The appellants each maintain a public Facebook page on terms of use
agreed with Facebook. The page is used by each appellant to share content and
connect with Facebook users. The page is publicly accessible to users, who are
able to view and comment on content posted to that page.
1
Uniform Civil Procedure Rules 2005 (NSW), r 28.2.
2
Voller v Nationwide News Pty Ltd [2019] NSWSC 766.
3
Fairfax Media Publications Pty Ltd v Voller (2020) 380 ALR 700.