Kiefel
Keane
Gleeson
CJ
J
J
2.
6
The use by each appellant of their Facebook page usually involves the
posting of a hyperlink to a news story, with a headline, a comment and an image.
Clicking on the hyperlink takes the reader to the full story on an appellant's news
website. Readers are invited, by options which appear under the post, to "Like",
"Comment" on or "Share" the post. These options are standard features of a
Facebook page. Comments which are made by users appear on the page and are
available to be seen by all Facebook users who can see the page.
7
The Facebook page used by each appellant is managed by a Page
administrator, the person or persons authorised by the appellant to administer it in
accordance with Facebook's terms of use. There was evidence before the primary
judge, which was largely uncontentious, that an administrator could prevent, or
block, the posting of comments by third parties through various means, although
the Facebook platform did not allow all posts on a public Facebook page to be
blocked. Individual comments could be deleted after they were posted but this
would not prevent publication. It was possible to "hide" most comments, through
the application of a filter, which would prevent publication to all except the
administrator, the third-party user who posted the comment and their Facebook
"friends". Hidden comments could then be individually assessed by an
administrator. If sufficient staff were allocated to perform this task, comments
could be monitored and un-hidden if approved by an administrator.
8
The primary judge found, as might be anticipated, that certain posts would
be expected to draw adverse comments about the person who was the subject of
the news story. It was not in dispute that the use of a Facebook page encourages
and facilitates visits by third-party users to a media outlet's own website. The
number of comments is an important aspect of the use of a public Facebook page,
because comments increase the profile and popularity of the page, which in turn
increases the readership of the digital newspaper or broadcast, and the revenue
from advertising on both the page and the digital newspaper or broadcast.
The Defamation Act 2005 (NSW)
9
Section 6 of the Defamation Act 2005 (NSW) states the subject matter of
the Act to relate to "the tort of defamation at general law". It 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)".