is inconsistent with the very nature of on-line real-time interactive webpages to
exercise that degree of editorial control. The exercise of editorial control in
advance of a complaint that material is defamatory is antithetical to that forum
of communication. The decision of Oriental must ultimately be founded on the
public utility of communications of that kind. In the context of those legal policy
considerations, the fact that it is people other than the hosts who author and
post on the webpage, at any time of the day or night, and on every day of the
year, is sufficient reason to distinguish a forum host from the proprietor of a
newspaper or television station and to treat them as secondary participants. Of
course the manager of a webpage which commonly attracts defamatory
material may, prospectively, be attributed with notice, or treated as the primary
publisher of, defamatory comments he has knowingly or recklessly
encouraged or allowed.” (Citations omitted.)
130 The last paragraph, recited above, needs some explanation in light of the
evidence that has been adduced in these proceedings. First, as is clear from
the conclusions, which the Court, as presently constituted, has stated, it is
possible for the defendants in each of these proceedings to vet all comments
by compiling a list that would render all comments, or substantially all
comments, hidden and unable to be read by anyone other than the
Administrator, the third-party commentator and Facebook friends of the thirdparty commentator.
131 Further, it is not clear from the discussion of Kourakis CJ (nor was clarification
necessary for the purposes of his Honour’s discussion) whether the forum, of
which the forum host to which his Honour is referring was the host, was part of
the business of the host and the publication of which was the business of the
host. There are examples of forums solely conducted for the purpose of
enabling discussion of a particular subject matter, e.g. professional forums
dedicated to the use of or the side-effects of particular drugs, and which are not
conducted for the commercial purposes of the Owner.
132 Lastly, the last sentence, at [146] of Duffy, bears particular relevance to the
impugned material on the defendants’ public Facebook pages in circumstances
where, on the finding of this Court, the initial post by the defendant would, if
assessed, be assessed as likely to produce defamatory comment. Kourakis CJ
also made it clear, that the public policy interest in treating a webpage host as
a subordinate publisher, as distinct from a primary publisher, would be greater
if the webpage host had no capacity to vet postings in advance of their
placement.