The Court was satisfied that the media companies were, on the balance of probabilities, a first or primary publisher because each is ultimately the 'owner' of a public Facebook page with the ability to allow the public to access comments authored by a third-party user.
In the judgment Rothman J considered the manner in which a public Facebook page operates and the process by which third-party comments are published on such a page. Each of the three defendant companies posted a hyperlinked snippet of an article from their sites, usually accompanied by a photograph or a video under which anyone with a Facebook account could comment. The Court noted evidence indicating the importance to the defendants of readers providing such comments, ie increased exposure and consequent advertising revenue.
The judgment states
... cross-examination of each of the defendants’ witnesses concentrated on the likelihood of inappropriate comment to controversial postings by the defendant, as one aspect upon which the defendant could rely in terms of limiting the monitoring that might otherwise be necessary. The evidence, however, was that controversial comments could occasionally (although rarely) be excited by wholly innocuous postings by the media company.
Mr Love made it clear that the primary purpose of Australian News Channel was to interest readers and have them gain access either to the Australian News Channel website or some other digital publication of the news, rather than the snippet on the public Facebook page. There is an assessment made of the risk associated with particular stories having an adverse effect on the person or persons who is or are featured in the story.
Mr Love accepted that the uploading of the editorial from the Andrew Bolt program was likely to provoke comments. One of the comments to the Bolt editorial is a matter about which the plaintiff complains.
Yet, on the evidence of Mr Love, no consideration was or is, as a system or otherwise, given to whether the sort of comment about which complaint has been made was a likely comment to the editorial, when the editorial was selected for placement on the public Facebook page. In other words, although Australian News Channel assessed its comment, it conducted no assessment of likely reactions.
Nor was there any consideration to the sort of comment that was likely to flow from the posting by the defendant, Australian News Channel, from the plaintiff himself stating that nobody deserved to be treated in the way that he was.
There are over 15 million Australian Facebook users which, when one omits from the Australian population those over 60 years of age and under 6 years of age, is significantly more than half of the Australian population. Mr Love agreed that nothing specific is done about considering the risk that people who are intolerant and irresponsible may be posting comments on the organisation’s public Facebook page.
Mr Love accepted that the organisation could, effectively, block any comments by choosing a significant number of ordinary words that would be required to be contained in every comment. In doing so, Mr Love pointed to the resourcing issue that this would create. In his words, it would take the Australian News Channel some time to look through the 7,000 comments that they would receive every day to decide what was acceptable. The evidence suggests it takes no more than an average of 10 seconds (T, p 159 per Pfeiffer) to review a comment, in which case 7,000 comments per day (the greatest number of comments on any of the defendants’ pages on any day) would require the equivalent of an additional 2.5 employees, assuming, contrary to the evidence, that no work hours are currently expended on the task.
If all comments were hidden, in the manner suggested, Mr Love saw that as a “free speech” issue and, although he was uncertain about it, an issue that may affect the Facebook algorithm, which may affect the organisation’s overall performance on Facebook. The ultimate fear was that there would be overall fewer comments, because the blocked comment would not be seen and would not, as a consequence, excite further comments. The organisation, Australian News Channel, monitors the popularity of the Facebook page (or each of its public Facebook pages) and compares it to the ratings received by other publications of a similar kind.
Ms Ryan was cross-examined (as were each of the witnesses) on essentially the same subject matters. Her evidence is to the effect that the Facebook page was operated for the benefit of Nationwide News, being an exercise to seek to increase the awareness of the publication, being The Australian Newspaper and increase the audience or readership of the newspaper. About half the articles that were published in The Australian were selected for placement on the Facebook page.
The link on the Facebook page would take a reader to The Australian Newspaper. Initially, when Ms Ryan first commenced in her current position, a reader could then read up to three articles from The Australian without payment. About halfway through the period of her employment, the number of articles that a reader could read without payment reduced to one article.
Again, Ms Ryan attested to the existence of two filters: one operated by Facebook known as “Profanity Filter”, which an owner of a public Facebook page could opt into at three different levels (“off”, “medium”, or “strong”); and one operated by the owner itself known as “Page Moderation”. The Facebook filter generally operated in relation to certain well-known profanities and would exclude from the public Facebook page any comments that contained one of those profanities. Again, Ms Ryan sometimes used the term “blocked” to include a comment that was “hidden” to the general public.
Monitoring each comment and deleting it requires a significant effort. Less effort is required if the comment is to be hidden because automatic filters can operate. Again, Ms Ryan testified that by utilising the filtering mechanisms to catch common words, such as all of the pronouns and the like, the vast bulk of comments, and possibly all of the comments, would be hidden.
If all the comments were hidden pending approval, the original article, placed on the page by the media owner, would appear in exactly the same way as it would otherwise. Further, any member of the public could share the article in exactly the same way as it may be shared otherwise; liked in the same manner; but there would not be any visible comments, except to the Administrator of the page, the third-party commentator in relation to the comment placed by her or him and Facebook friends of the commentator.
In answering the question as to why such a course was not implemented, Ms Ryan said: “Because it would involve someone sitting and un-hiding comments all day. It would, people would still be able to post pictures, memes. They would still be able to post comments without using the filter. I think people would get frustrated with their comments not appearing on the page. It, ... in my opinion it wouldn’t make sense.” (T, p 102.)
If, on the other hand, the assumption made by Ms Ryan did not operate and no one ever “unblocked” or rendered the comment “un-hidden”, it would require no additional staff, but there would not be any comments that could be seen by the public, other than the defined class of members of the public that were Facebook friends of the person placing the comment or blog on the public Facebook page.
At the moment, according to Ms Ryan, if Nationwide News posted a controversial article on, perhaps, a controversial person, where the staff assessed that members of the public had a certain level of vitriol towards that person or that situation, the staff will monitor that article and its comments closely, or more closely, and hide and/or delete comments, where needed. Ms Ryan explained that the reference to monitoring more closely meant perhaps five or six times a day. Nevertheless, it would involve looking at each of the relevant comments.
Ms Ryan was asked some questions about the article that was placed by Nationwide News on the public website and accepted that the article was not favourably disposed to the plaintiff, but could not say whether any member of staff at Nationwide News assessed whether posting the article would excite members of the public to comment adversely about the plaintiff. Apparently, no system is in place for such an assessment or for action to be taken if, notwithstanding the absence of a system, an assessment were to have been made.
Ms Ryan accepted that seemingly defamatory material was a “thoroughly predictable” result of posting the relevant article onto the public Facebook page. Further again, Ms Ryan was unable to say whether any monitoring occurred of the comments in relation to the plaintiff.
As the evidence of Ms Ryan makes clear, it is important to Nationwide News that there are comments on the webpage, amongst other reasons, because it motivates others to comment and the greater the number of comments, then the rating for the public Facebook page becomes higher, which, in turn, markets the page to a greater number of members of the public and, in turn, markets the newspaper to a greater number.The Court found that each company had the capacity to hide each comment until the comment was scrutinised and approved/rejected. That would require additional resources, considered to involve the equivalent of 2.5 employees and that would include some work already performed. Each of the defendant’s witnesses accepted that the Facebook posts about the plaintiff were likely to provoke comments that were critical of Mr Voller, including some that would be defamatory.
Rothman J held that in relation to a public Facebook page, comments authored by a third-party user were solicited, invited and by the owner. The Court contrasted that welcome with the unauthorised publication of defamatory posters on bus shelters, discussed in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81–127. In Urbanchich the the defamatory posters were placed on bus shelters without authorisation by the Council (owner of the property), in locations not constructed to host posters.
The Court differentiated a public Facebook page from a Google search, referring to Google Inc v Duffy (2017) 129 SASR 304 in which the Full Court in South Australia discussed the principles and conditions for which Google would be liable for defamation. The Court distinguished the Voller dispute from Murray v Wishart [2014] 3 NZLR 722 where the New Zealand Court of Appeal dealt with an individual’s Facebook page, not a public Facebook page.
Rothman J considered the salient distinction was that an individual Facebook page does not allow comments to be vetted in advance by hiding comments. A public Facebook page does allow that vetting through its filters. The Court favourably considered the analogous circumstance discussed in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; [2013] HKCFA 47. In Oriental Press the Hong Kong Court of Final Appeal determined that the defamatory comments were the result of the respondents having facilitated speech in a forum hosting a large volume of communications rather than being the originators of the defamatory comments.
