Liability for the Publication of Third Party Comments: Fairfax Media Publications Pty Ltd v Voller

Abstract

The liability of media outlets for third party comments posted on public Facebook pages raises difficult issues of basic principle for the tort of defamation. The appeal before the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller involves a reconsideration of basic principles of publication. The media outlets argue that intention to publish is required to establish the element of publication as part of the cause of action in defamation. This column argues that the better view is that liability for publication is strict. This does not mean, however, that the media outlets are liable for the third party comments posted on their public Facebook pages. This column argues that it is necessary to analyse distinctly what the conduct amounting to communication of the defamatory matter is and the basis upon which the defendant is responsible for that conduct. It argues that the media outlets may not be liable for the third party comments, at least in the absence of actual notice, by virtue of publication by omission, the proper juridical basis of which is the defendant’s continuation of a third party’s wrong.