has a public Facebook page on which it places a comment and which invites
members of the public, who have Facebook accounts, whether subscribers or
otherwise, to comment.
9
Those third-party comments contain material that is said to be defamatory and
the fundamental issue for the Court is to determine whether each of the
defendant media companies is liable for the defamatory material in the thirdparty comments. The content and terms of the alleged defamation, or the
imputations that are said to arise, are irrelevant for present purposes.
10
More relevant, for the determination of the question by the Court, is the
process by which the third-party comments are published to the world on a
public Facebook page and the manner in which a public Facebook page
operates. On that issue, there was significant evidence, including expert
evidence, although much of it is uncontroversial.
11
It should be noted that the plaintiff does not allege, in any of the proceedings,
that the defendant was negligent in allowing the third-party comments to
remain on the public Facebook page. Nor does the plaintiff allege that any of
the defendants were negligent or reckless in failing to delete the comments,
once it was aware that the defamatory material was on their public Facebook
page. Otherwise, the issue to be resolved in relation to the separate question
relates to the operation of a public Facebook page and the operation of each of
the defendants and not to the content of the publication.
12
The plaintiff relied upon two reports of Mr Ryan Shelley from Pepper Pty Ltd,
dealing with the operation of Facebook, the media and, in particular, a public
Facebook page. Essentially, the evidence before the Court is that media
outlets, including each of the defendants, use Facebook as a channel for
broadcasting news stories, or providing links thereto.
13
Typically, this is achieved by posting a link, on their public Facebook page on
which a story is introduced with an image, a headline and a comment about the
article. The comment about the article links back to the full article on the news
website. The public is then invited to make comment on the publication either
on the public Facebook page or the news website.