publication. In order to sheet home to the Council that responsibility, the
plaintiff was required to establish that the defendant consented to or approved
of, or adopted or promoted, in some way the continued presence of the poster
on its property.
114 One of the other differences in relation to a public Facebook page is that the
comment compiled or authored by the third-party user is not published until
such time as the owner of the public Facebook page allows persons to read it,
or, in the words of the High Court in Gutnick, it is the owners of the public
Facebook page that would render the material comprehensible and allow it to
be downloaded.
115 The owner of a public Facebook page of the kind with which the Court is here
dealing is able to assess its original post as one which is likely to give rise to
one or more defamatory comments. There may be some posts that, on initial
assessment, would be unlikely to give rise to defamatory comments.
116 Further, the Owner/Administrator of a public Facebook page, of the kind here
relevant, is capable of rendering all or substantially all comments hidden, which
would mean they were unable to be downloaded or accessed by any person
with a Facebook account, except the administrator, the third-party
commentator and Facebook friends of the third-party commentator. Thus, the
extended publication of the comment is wholly in the hands of the media
company that owns the public Facebook page.
117 It is necessary to deal with two judgments of intermediate Courts of Appeal,
and with judgments in the United Kingdom and Hong Kong. I turn first to the
judgment of the Full Court of the South Australian Supreme Court in Google
Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130.
118 In Duffy, the Full Court of the Supreme Court of South Australia had cause to
deal with the liability of Google, when used as a search engine, to which earlier
reference has been made. Six articles that were said to be defamatory were
published on one or more primary websites, between December 2007 and
January 2009. Other websites published material derived from the primary
websites.