alleged to be defamatory relate), if any assessment were
to have been made (which it was not), would have been
assessed as likely (i.e. more probably than not) to give
rise to nasty and defamatory comments;
(xiii)
It is impossible for the defendants, or any of them, to edit
or delete a comment by a third party user, prior to its
placement on the public Facebook page, except by hiding
it and un-hiding acceptable comments in accordance with
(vi) and (vii) above;
(xiv)
The defendants could, if sufficient staff resources were
allocated, monitor comments, whether published or
hidden, and hide, delete or “un-hide” those comments;
(xv)
With the exception of the Centralian Advocate, no
defendant applies sufficient staff to perform the task to
which (xiv) above refers;
(xvi)
The Centralian Advocate employs sufficient staff for that
purpose, but does not undertake the task described in
(xiv) above, by utilising the process described in (vi) and
(vii) above;
(xvii)
The existence and number of comments (including “likes”
and “shares”) from third-party users is an important (and,
more probably than not, the most important) aspect of the
public Facebook page, as it affects the Facebook
algorithm and increases the profile of the Facebook page
and the consequential popularity of the Facebook page,
thereby increasing readership in the digital
newspaper/broadcast and augmenting advertising sales
on both the Facebook page and the digital
newspaper/broadcast.
Legal Precedent
91
It is fair to say that the issues before the Court in this matter relate to an
emerging area. Many defamation proceedings have been taken in relation to
social media. Plaintiffs have sought damages against persons who have
defamed them in emails and on websites. In most, if not all, of such
proceedings, it is the owner of the website (or email address) who has been
the publisher of the defamatory material: see, for example, Al Muderis v
Duncan (No 3) [2017] NSWSC 726; Polias v Ryall [2014] NSWSC 1692
92
On a few occasions, plaintiffs have sought damages in defamation against a
publisher of a search engine that produces, on a search, an article otherwise
available on the Internet that is defamatory of the plaintiff: see, for example,
Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130.