Administrator and then posted by the Administrator, Ms Phan makes clear that:
Fairfax has no control over the contents of comments before they are posted
by users; has no prior knowledge of comments posted by users; does not know
in advance how users will comment in response to a preview hyperlink; cannot
require users to seek approval from Fairfax prior to posting (except as
excluded above); and cannot view, edit or otherwise determine the content of a
comment, before it is posted. The foregoing, as stated, assumes that
comments are permitted at all.
36
The evidence of all of the witnesses makes clear that the comments that are
immediately visible by a person, who gains access to the Facebook page, will
vary from time to time. First, the Facebook page will be updated with later
comments, if any.
37
Secondly, if particular comments are liked, shared or further commented upon,
the incidence of the original comment’s popularity will give a priority to that
comment, which is an effect of the algorithm utilised by Facebook. A person
may click on a particular comment or follow the trail of a particular comment
and, in doing that, view other comments that are not immediately visible on
inspection of the Facebook page screen.
38
Ms Phan, and the other defendants’ witnesses, testified to the capacity of the
Administrator of the Facebook page to hide or delete a comment after it has
been posted, if they become aware of the relevant comment. An Administrator
becomes aware of the comment either by monitoring the Facebook page or by
utilising the Facebook Administrator tools or by becoming informed of it by
another person.
39
Notwithstanding the capacity of the Administrator to block a particular user, that
user may, once it becomes known to her or him that she or he is blocked, open
a different Facebook account and make comment using that different
Facebook account (at least until that different account is blocked, if it were to
be). Ms Phan suggests that it would be “physically impossible” for her and her
team to monitor every comment. There are two in the team. She does not
attest to the number of persons that would be necessary to monitor the
comments.