Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd

Legal Precedent

It is fair to say that the issues before the Court in this matter relate to an emerging area. Many defamation proceedings have been taken in relation to social media. Plaintiffs have sought damages against persons who have defamed them in emails and on websites. In most, if not all, of such proceedings, it is the owner of the website (or email address) who has been the publisher of the defamatory material: see, for example, Al Muderis v Duncan (No 3) [2017] NSWSC 726; Polias v Ryall [2014] NSWSC 1692
On a few occasions, plaintiffs have sought damages in defamation against a publisher of a search engine that produces, on a search, an article otherwise available on the Internet that is defamatory of the plaintiff: see, for example, Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130.
It is necessary to start from some basic, perhaps trite, propositions. It is often said that publication occurs when a person gains access to an online document. The basis for such a proposition, which, to some extent, has become lore, is the reasons for judgment in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 ("Gutnick").
The statement oversimplifies, although, for most purposes, accurately, the reasons for judgment of the High Court. Further, the statement pays little or no regard to the issue with which the High Court was there concerned.
In Gutnick, supra, the High Court was dealing with whether a Victorian plaintiff could sue, in the Supreme Court of Victoria, a United States corporation for libel, in circumstances where the United States Corporation posted a newsletter, the server for which was in Virginia, on the World Wide Web and made it available to subscribers around the world. Given that the matter raised in these proceedings is one that relates to emerging circumstances and principles, it is important to recite some of the fundamental features to which the High Court referred in Gutnick.
First, the High Court made the obvious point that defamation law balances the interest in freedom of speech and the free exchange of information and ideas, on the one hand, and, on the other hand, the maintenance of an individual's reputation in society and that individual's right to redress from unwarranted damage to that reputation: Gutnick, supra, at [23].
Next, the High Court reiterated that, like all torts, a cause of action arises from damage and, without damage, no action arises. In Australia, as in most common law countries and many States of the United States (often referred to as the "per se States"), damage is assumed, once it is shown that a publication is defamatory.
It matters not whether the publisher of the defamatory material intended injury to reputation or acted with reasonable care: Gutnick, at [25], citing Lee v Wilson (1934) 51 CLR 276; [1934] HCA 60. While referring to Pollock (Law of Torts, 13th ed. (1929)) with some muted approval to the effect that defamation may have gone wrong by making the damage and not the insult the cause of action, the High Court makes clear, as was done in Pollock, that it is now too late to deny that focus of the law. Yet, it is the publication of the material, not its composition, which is the actionable wrong: Lee v Wilson, supra, at 287, per Dixon J (as his Honour then was), cited with approval in Gutnick, at [25].
In the words of the plurality in Gutnick: "Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension." (Gutnick, at [26])
The High Court, in the reasons for judgment of the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) then discussed the consequential "bilateral nature of publication" and, as a consequence, raised the question as to where the tort of defamation is committed, in circumstances where the publisher acts in one place and presents the defamatory material in a comprehensible form in another place, and each place is a different jurisdiction. The judgment also deals with the single publication rule and its effect on the answer to the proper jurisdiction for the cause of action. It is unnecessary to deal with that issue.
Their Honours, in the plurality judgment, then discuss the effect, if any, of the technological change associated with the Internet and the World Wide Web. The Court determined that, in principle, the same issues as to dissemination on a broad basis have arisen in the past with mass circulation newspapers and radio and television broadcasts. The Court concluded: "However broad may be the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction." (Gutnick, at [39].)
Ultimately, the Court determined that, ordinarily, an action for defamation, based as it is on the location of the place where the damage to reputation occurs, will occur where the defamatory material is available in comprehensible form, assuming, in that respect, that the person defamed has a reputation in that place.
As a consequence of the principles to which the High Court refers in Gutnick, it is the publication of the material in comprehensible form in a location where there exists persons with whom the plaintiff has a reputation that occasions an actionable defamation. It is not defamatory, as such, merely to compile a statement that, if it were ever published, would be defamatory.
Thus, a book that is printed and distributed to booksellers, but withdrawn before any person is able to purchase and/or read the book, cannot give rise to damage to reputation or an action in defamation. For the foregoing example, I leave aside as trivial, the publication of the manuscript to the publisher, or proof-readers, or, to the extent that it was read by them, to any person involved in the printing of the book.
Applying the foregoing principle to the issue of the public Facebook page, it is not the compiler of a comment that publishes as a result of her or his authorship. It is the publisher of a comment in a comprehensible form or legible form that publishes the comment. The difficulty therein arises as a result of the circumstance that the third-party commentator, who has compiled the comment, publishes it by loading it onto the public Facebook page, which is comprehensible because the media company has rendered it relevantly public.
Thus, if an author of a comment, which is defamatory, were to post that comment on a public Facebook page, publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page.
It is necessary to deal with a number of authorities that have dealt with the publishers of search engines and Facebook pages. The defendants seek to draw comfort from the comments of McCallum J (as her Honour then was) in Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897, in which her Honour deals with the principles adumbrated by Hunt J in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81 - 127; (1998) A Def R 50-035 (Supreme Court (NSW), Hunt J, 22 December 1988, unrep).
As may be obvious from the title of the judgment delivered by her Honour, the plaintiff was seeking damages for defamation against Google Inc, the U.S. company providing a search engine, known as Google, for the results of a search, the results of which Google provided to (for the purposes of the proceedings before her Honour) three people. The judgment issued by her Honour dealt with Google's application that the proceedings be stayed permanently or, alternatively, summarily dismissed as an abuse of process.
In the course of her Honour's reasons for judgment, her Honour dealt with the judgment of Hunt J in Urbanchich, to which earlier reference has been made. In so doing her Honour, after referring to [44] of the reasons for judgment in Gutnick, referred to a passage from the judgment of Hunt J in Urbanchich.
With respect to her Honour, I agree with the result to which her Honour came and, largely with the reasons therefor. However, to derive comfort from the judgment of Hunt J in Urbanchich was, in my respectful view, to misconceive that which was before Hunt J. Her Honour, at [76] of Bleyer, recited the following passage from the reasons for judgment of Hunt J: "In a case where the plaintiff seeks to make the defendant responsible for the publication of someone else's defamatory statement which is physically attached to the defendant's property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement."
The reasons for judgment of Hunt J concerned the pictorial depiction of the plaintiff in Urbanchich as a Nazi. That depiction was in a poster that was glued to the property of the defendant, Drummoyne Municipal Council and, it seems, others.
The publication of the defamatory material bore no relationship to the location at which it was posted. The publication was performed by whoever glued the poster to whatever wall or bus shelter was available. Drummoyne Municipal Council was not building bus shelters for the purpose of hosting posters, defamatory or otherwise, and it neither agreed to nor encouraged the display of posters of any kind on their property.
The damages that were sought against Drummoyne Municipal Council were damages that depended upon that defendant publishing the material and that, in turn, depended upon Drummoyne Municipal Council continuing the 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.
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.
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.
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.
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.
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.
In July 2009, the plaintiff, in the proceedings, became aware that a search of her name through Google resulted in the display of extracts, being defamatory material. As a consequence, the plaintiff notified Google of the defamatory material and requested Google to remove the material (or at least ensure that a search through its search mechanisms did not locate the material).
The Court, in its reasons for judgment, discussed the principles that should apply in the circumstances that were before it and some of the fundamental first principles upon which it relied to reach that conclusion. By majority, the Full Court dismissed the appeal, from the judgment at first instance, which had held that Google was liable for the defamation associated with the extracts (or summaries) of the primary website and subsequent websites that it published in producing the search results.
While not relevant for present purposes, it should be noted that the websites to which Google gave a link when Dr Duffy's name was searched were defamatory. The Court, both at first instance and on appeal, also found (or confirmed) that the result of the search, itself, being the few lines that were said to summarise the websites obtained by the search, were themselves, in part, defamatory.
In the course of his dissenting judgment, Chief Justice Kourakis said at [89]: "The participants in the publication may play primary or secondary roles. Authors and editors are primary participants. The principal of an enterprise which creates or procures and then disseminates words or images is a primary participant in the process of publication and is commonly referred to as the publisher. Historically printers have also been regarded as primary publishers but that rule has been doubted in modern times. Both publishers and printers are generally liable as primary participants even though they print and publish the work through their servants and agents."
And continued, in relation to that aspect, in the following way: "In the broader sense, any facilitation of publication might be said to be participation in it. However, there must be closer limits on the scope of liability as a secondary participant. To draw an analogy with accessorial liability in crime, it is notable that some participation may result in liability as an accessory before the fact but not as a principal in either the first or second degree. So too in the tort of defamation not all facilitation will result in liability, even as a secondary participant, in the publication. Much depends on the degree of causal connection between the facilitating act and the publication of the material." (Duffy, at [91])
The fact that Kourakis CJ was in dissent does not detract from the principles stated by him, in which, for all matters relevant to these proceedings, were agreed by the majority. In his reasons for judgment, Kourakis CJ differentiated between primary and secondary participants and dealt, at least in some respect, with innocent dissemination. At [100] of his reasons for judgment, Kourakis CJ referred to the modern dichotomy between acts and accompanying states of mind and referred to the principle that knowledge of the presence of defamatory material was an element of the tort, but one which is conclusively presumed against primary participants.
Nevertheless, that presumption also applies to secondary participants, but can be rebutted for a secondary participant, who shows that she or he did not know and could not reasonably have known that the defamatory material had been disseminated or that disseminated material contained defamatory words: Duffy at [100]. His Honour refused to overturn or find differently from the decisions in Emmens (a reference to Emmens v Pottle (1885) 16 QBD 354) and Vizetelly (a reference to Vizetelly v Mudie's Select Library Ltd (1900) 2 QB 170) as establishing rules that are now too well established to be overruled. It is worth noting that each of the judgments in Emmens and Vizetelly concerned secondary participants in the publication of defamatory material.
The Chief Justice continued and sought to describe the first two elements associated with liability for defamatory material by a secondary participant at [102] of his reasons for judgment, in which he said: "[102] I would therefore reframe the first two elements identified by the Judge as follows: 1 the defendant participates in the publication to a third party of a body of work containing the defamatory material; 2 the defendant does so knowing that the work contains the defamatory material. That knowledge is presumed conclusively in the case of a primary participant, but may be rebutted by a secondary participant who does not know and could not reasonably have known of the presence of the material. [103] Irrespective of whether lack of knowledge is expressed as a standalone defence or an element of the liability of a secondary participant, the defendant carries the onus of establishing that it did not know, or could not reasonably have known, that the publication contained the defamatory statement. It is more consistent with the historic irrebuttable presumption of malice to hold a secondary participant liable for all of the contents of the publication, without requiring the plaintiff to prove that the defendant knew, or ought to have known, that the work contained the defamatory words or symbols. However, the defence of innocent dissemination may be established by showing both that participation in the publication is secondary and that the participant's ignorance of the defamatory material was not negligent."
His Honour also dealt with a series of first instance cases, in the UK, an example of which is Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB), which dealt with the liability (or, more accurately, the lack of liability) of Internet service providers (ISPs) through which individual defendants had made defamatory posts on webpages hosted by others. The Chief Justice distinguished such a situation from that which was then before the South Australian Supreme Court, with which distinction, with great respect, I agree.
Further, Kourakis CJ dealt with the concept of a "passive medium", which was a description afforded an ISP by Eady J in Bunt, supra. However, Kourakis CJ referred to the concept as one that was likely to mislead, when referring to electronic media, because almost everything occurs by operation of one or other pre-programmed results or the application of a mathematical algorithm.
Nevertheless, his Honour the Chief Justice further distinguished, in terms that dealt with their approval of the process, persons who were administrators, webpage masters, providers and managers of Internet forums or web-based bulletin sites. In that passage, which is apposite to the discussion of the issues now before the Court, Kourakis CJ said: "[141] Webpage masters of internet forums or web-based bulletin sites which receive communications electronically but then make them readable in an organised manner by visitors to their webpages are in a very different position. Hosts of those webpages more closely facilitate the publication of material, on their sites because: * they invite communications on a particular subject matter (indeed, comment and discussion is the very purpose of such sites); * they have a greater capacity to read both by virtue of the form it is in and the more limited quantity of material they receive in comparison to the data for which telecommunications cable provider or an ISP is a conduit; and * they have a practical capacity to control the content of their website. [142] Accordingly, the hosts of webpages which invite discussion have been found to be publishers at common law in Godfrey v Demon Internet Limited, and Metropolitan International Schools Ltd (trading as SkillsTrain and/or Train2Game) v Designtechnica Corp (trading as Digital Trends) (Metropolitan International Schools). [143] In Oriental Press Group Limited v Fevaworks Solutions Ltd, (Oriental) Ribeiro PJ explained the reasons for treating providers, administrators and managers of what was effectively an internet forum (I will refer to them as forum hosts) as publishers and distinguishing them from the proprietors of the golf club in Byrne as follows: [50] Once the nature of the Byrne v Deane principles is grasped, it becomes clear that they do not apply to internet platform providers like the respondents. The provider of a discussion forum is in a wholly different position from that of the occupier of premises who is not in the business of publishing or facilitating publication at all, but who has had imposed on him the defamatory act of a trespasser. [51] The respondents plainly played an active role in encouraging and facilitating the multitude of internet postings by members of their forum. As described in Section B of this judgment, they designed the forum with its various channels catering for their users' different interests; they laid down conditions for becoming a member and being permitted to make postings; they provided users browsing their website access to the discussion threads developed on their forum; they employed administrators whose job was to monitor discussions and to delete postings which broke the rules; and they derived income from advertisements placed on their website, a business model which obviously benefits from attracting as many users as possible to the forum. [52] The respondents were therefore, in my view, plainly participants in the publication of postings by the forum's users and in that sense they were publishers from the outset, it being in issue whether they were first or main publishers or merely subordinate publishers… [53] In this context, I respectfully part company with the reasoning (adopted on an interlocutory basis) of the English Court of Appeal in Tamiz v Google Inc. It is reasoning which proceeds on the basis that successful invocation of the defence of innocent dissemination results in the defendant being deemed not to have published at all. For the reasons previously given, I do not accept that premise. Nor am I able to accept the distinction drawn between the notice board and graffiti analogies, nor the suggestion that 'the provision of a platform for blogs is equivalent to the provision of a notice board'. As indicated above, my view is that the provider of an internet discussion platform similar to that provided by the respondents falls from the outset within the broad traditional concept of 'a publisher', a characteristic not shared by a golf club or other occupier who puts up a notice board on which a trespassing message is posted. … [146] A forum host is the principal of an enterprise, whether large or small, which encourages and elicits contributions from others whether for commercial, personal or ideological reasons. On the criteria identified by Ribeiro PJ, which broadly approximate the criteria identified at [141] above, if there were a capacity to block postings until they were vetted, there would be a strong case for holding that forum hosts are primary publishers. However, it is inconsistent with the very nature of on-line real-time interactive webpages to exercise that degree of editorial control. The exercise of editorial control in advance of a complaint that material is defamatory is antithetical to that forum of communication. The decision of Oriental must ultimately be founded on the public utility of communications of that kind. In the context of those legal policy considerations, the fact that it is people other than the hosts who author and post on the webpage, at any time of the day or night, and on every day of the year, is sufficient reason to distinguish a forum host from the proprietor of a newspaper or television station and to treat them as secondary participants. Of course the manager of a webpage which commonly attracts defamatory material may, prospectively, be attributed with notice, or treated as the primary publisher of, defamatory comments he has knowingly or recklessly encouraged or allowed." (Citations omitted.)
The last paragraph, recited above, needs some explanation in light of the evidence that has been adduced in these proceedings. First, as is clear from the conclusions, which the Court, as presently constituted, has stated, it is possible for the defendants in each of these proceedings to vet all comments by compiling a list that would render all comments, or substantially all comments, hidden and unable to be read by anyone other than the Administrator, the third-party commentator and Facebook friends of the third-party commentator.
Further, it is not clear from the discussion of Kourakis CJ (nor was clarification necessary for the purposes of his Honour's discussion) whether the forum, of which the forum host to which his Honour is referring was the host, was part of the business of the host and the publication of which was the business of the host. There are examples of forums solely conducted for the purpose of enabling discussion of a particular subject matter, e.g. professional forums dedicated to the use of or the side-effects of particular drugs, and which are not conducted for the commercial purposes of the Owner.
Lastly, the last sentence, at [146] of Duffy, bears particular relevance to the impugned material on the defendants' public Facebook pages in circumstances where, on the finding of this Court, the initial post by the defendant would, if assessed, be assessed as likely to produce defamatory comment. Kourakis CJ also made it clear, that the public policy interest in treating a webpage host as a subordinate publisher, as distinct from a primary publisher, would be greater if the webpage host had no capacity to vet postings in advance of their placement.
It is necessary to deal with the analysis by Kourakis CJ of the judgment in the UK in Tamiz v Google Inc [2012] EWHC 499 or, on appeal, in Tamiz v Google Inc (2013) 1 WLR 2151; [2013] EWCA Civ 68, as this was a judgment that concerned summary dismissal of the proceedings and whether there was an arguable case that Google was a publisher. The trial judge had rejected Google's contention that it could only be a publisher if it had authorised or accepted responsibility for the publication and Kourakis CJ confirmed the view of the trial judge.
Chief Justice Kourakis also confirmed the view expressed by the trial judge that: "The appropriate test remains whether the defendant has participated in the publication. I agree with the decisions to this effect of Morland J in Godfrey v Demon Internet Ltd, Beach J in Trkulja v Google Inc LLC (No 5), the Hong Kong Court of Final Appeal in Oriental Press Group Limited v Fevaworks Solutions Ltd and (subject to the issue of actual v constructive knowledge) the New Zealand Court of Appeal in Murray v Wishart. (Citations omitted.)"
The foregoing does not decide, as was the comment of Kourakis CJ, whether Google was a primary or secondary participant in the publication. Nor, for present purposes, does it matter, because Google was in a very different position from that of the defendants in these proceedings.
However, it should be noted that Kourakis CJ concluded that Google is best classified as a secondary participant, because its summaries are reproduced from other publications and pages on the Internet: Duffy at [158] (upon which finding his Honour was in dissent). Further, Kourakis CJ held that Google had knowledge of the probable content of future search results, once a person notified it of the existence of defamatory material in the results of a search already produced and should be allowed a reasonable time to take down references to the defamatory material, based on the public policy favouring the dissemination of information generally: Duffy at [159].
It is important to understand the significant distinction between the production of a Google search and the publication of comments on a public Facebook page. As earlier stated, it is possible for a public Facebook page to be produced that would not allow any comments.
Further, while it is not possible to edit or delete third-party comments in advance (assuming any comments are allowed), it is possible, by the listing of common pronouns and other common parts of speech, to hide all (or substantially all) comments from third-party users and to vet comments prior to them being rendered available for third-party users. Google searches merely provide results of articles otherwise published, in readable form, on the Internet, but summarises, usually by extract, the gist of an article.
There would be an inordinate number of searches and an inordinate number of articles which could be the subject of search. It would, as Kourakis CJ noted, be impossible, in any meaningful way, to attribute to Google advanced knowledge of the contents of every document published on the Internet.
I turn then to the judgment of the New Zealand Court of Appeal in Murray v Wishart [2014] 3 NZLR 722; [2014] NZCA 461. This judgment was discussed by Kourakis CJ in Duffy, supra. Murray v Wishart was a judgment on appeal from the High Court of New Zealand in which the appeal was allowed in part.
As Kourakis CJ noted, the judgment of the New Zealand High Court was an interlocutory judgment and the judgment of the Court of Appeal in New Zealand was an appeal from an interlocutory order. Nevertheless, the Court quashed the order of the High Court in relation to the "fifth cause of action", which cause of action related to third-party statements on the Facebook page hosted by the first appellant, Mr Chris Murray, ruling that this cause of action was untenable and, in its reasons, taking the view that Mr Murray could not be responsible for third-party statements or comments that were published on his Facebook page. It is necessary to summarise the facts upon which the judgment depended.
Mr Wishart, the respondent in the appeal, is the author of a book called Breaking Silence, which seeks to establish that a woman, Ms King, was innocent of the murder of her twins, aged three months. The coroner had found that the twins died while in the sole custody of their father, who had been charged with their murder and acquitted.
During his trial, the father suggested that Ms King had inflicted the fatal injuries and the allegation had been given some currency and ventilation. The book was published, at least in part, to seek to restore Ms King's reputation.
Mr Murray learned of the impending publication of the book and established a Facebook page called "Boycott the … King book". On that Facebook page he posted comments criticising Mr Wishart and Ms King, as did numerous other people. Many of the comments were defamatory, or, relevantly, allegedly so.
The Statement of Claim that was issued sought, in what became the fifth cause of action, to sue for damages against Mr Murray (and the webpage host) for comments made in third-party statements by persons posting onto the webpage. It was this fifth cause of action, or the comments thereon by the New Zealand Court of Appeal, that is relevant for the present proceedings.
There are two relevant aspects of the reasons for judgment in Murray v Wishart, which it is necessary to discuss. First, it is necessary to discuss how the Facebook page, which was the subject of the proceedings in Murray v Wishart, operated.
It is clear, or seems clear, from the contents of the reasons for judgment at [86] and following, that the Facebook page with which the New Zealand Court of Appeal was concerned was a "private [individual] Facebook page"; and not a "public Facebook page", like the defendants in these proceedings published. Part of the affidavit upon which the Court of Appeal relied, being the affidavit of Mr Murray, referred to his Facebook page as an "individual Facebook page", over which the creator is unable to exercise meaningful editorial control, except as to comments posted by the creator herself or himself.
The affidavit also states (recited at [86] of the reasons for judgment), that there is no function on Facebook by which "a site creator can vet comments before they are published". Once aware of the comments published, the creator or administrator can retrospectively remove individual comments and block specific Facebook users.
Apparently, Mr Murray, while not able to vet, or control in advance, any comments that may have been posted by third-party users, did monitor the site and took frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate. He also blocked particular individuals whose views he considered unacceptable.
As a consequence of the findings, confirmed by the New Zealand Court of Appeal, including that Mr Wishart and his supporters were blocked from commenting on the Facebook page, the trial judge took the view that it was tenable that Mr Murray was a publisher of the statements made by third-party users on the Facebook page. Further, the trial judge noted that Mr Murray, as a publisher, may be able to avail himself of the innocent dissemination defence: in New South Wales under s 32 of the Defamation Act 2005 (NSW). The availability of that defence was not an appropriate basis upon which, in the view of the trial judge, the Court could strike out a cause of action.
As described by the Court of Appeal at [91] of its reasons, the trial judge's finding that Mr Murray ought to have known of the third-party statements "was a very important part of the finding … that the claim Mr Murray was a publisher of the third-party statements was tenable". As a consequence, the Court of Appeal was called upon to determine whether the appropriate test for liability was the "ought to know test": Murray v Wishart at [91].
The New Zealand Court of Appeal discussed, as did Kourakis CJ, the long-standing judgments in Emmens, supra, and Byrne v Deane [1937] 1 KB 818. It is unnecessary for the Court, as presently constituted, to comment separately on those earlier judgments, given the attention paid to them in the other judgments to which I have referred.
In the reasons of the New Zealand Court of Appeal, there was also a discussion of the liability of a debt collection agency for statements about credit worthiness that had been published by a prior owner of the business and placed on the website at that time by the prior owner. Actual knowledge was said to be necessary in order to sheet home liability to the subsequent owner: Sadiq v Baycorp (NZ) Limited [2008] NZHC 403. There was also an interesting, but not directly relevant, discussion of the responsibilities of a building owner for defamatory graffiti inscribed on the exterior of the building: see also the discussion, above, of Urbanchich.
The New Zealand Court of Appeal distinguished the US cases in which the issues of publication on a wall were discussed. The distinction between the results in the cases turned on an "invitation" to the public into the place where the wall could be viewed. Further, in the US case of Cubby Inc v Compuserve Inc (1991) 776 F Supp 135 (SDNY), defamatory statements were contained in an online newspaper.
Because of the corporate structure of the newspaper, its printer, its publisher and a third party who had the power to review, delete, edit and generally to control the content thereof, the third-party was held to be an independent contractor and the defendant had no greater editorial control over that which was contained in the newspaper than a public library or bookstore. The difficulty, pointed out by the New Zealand Court of Appeal, with reliance upon such a proposition is that the common law as it has been applied, at least since Emmens, supra, involves the proposition that a library and a bookstore (together with a news vendor) would be publishers, but would have available to them the innocent dissemination defence.
Lastly, of significant relevance, was the discussion by the New Zealand Court of Appeal of the judgment of the Court of Final Appeal of Hong Kong in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; [2013] HKCFA 47 ("Oriental Press").
The New Zealand Court of Appeal distinguished and disapproved the analogy between the host of a Facebook page with which they were presently concerned and a news vendor. The host of a Facebook page, they commented, provides the actual medium of publication and the role of a Facebook page host in the publication is completed before publication occurs. On the other hand, a news vendor is a publisher only because the vendor has a role in distributing the newspaper itself.
Further, the New Zealand Court of Appeal distinguished the reasons for judgment of the Court of Final Appeal of Hong Kong as based upon a conclusion as to the basis of the judgment in Byrne v Deane, supra. In Oriental Press, the Court of Final Appeal of Hong Kong rejected the analogy of the notice on the wall situation, described in Byrne v Deane, because it took the view that the judgment in Byrne v Deane was distinguishable because the notice on the wall in the club amounted to a trespass.
In contrast, posting a message on a Facebook page, in response to an invitation, is a lawful activity, solicited by the host. The New Zealand Court of Appeal did not consider that the fact of trespass was in the least bit determinative of the outcome in Byrne v Deane. Byrne v Deane concerned an anonymous notice posted on the wall of a golf club, in circumstances where the rules of the club provided no notices should be posted, without the consent of the Secretary. The UK Court of Appeal made it clear that the club had the power to remove the notice, but did not, and the defendants were responsible for the publication on that basis.
With respect to the New Zealand Court of Appeal, in my view, it has treated the issue of "trespass" too literally. As earlier stated, at [112] herein, the building owner/Council/club is not providing its property for a purpose that includes hosting posters and is not agreeing to or encouraging the display of posters of any kind on their property.
It is necessary to discuss at further length the judgment of the Court of Final Appeal of Hong Kong in Oriental Press, to which reference has already been made. From an Australian perspective, the judgment is useful, because it discusses the common law position, including an analysis of the judgments of the High Court of Australia and the Supreme Court of Canada.
The majority judgment was that of Justice Ribeiro PJ, a permanent judge of the Court, with whom Chief Justice Ma and Justices Chan, Litton and Gleeson agreed. Justice Litton was a non-permanent judge from Hong Kong and Justice Gleeson, also a non-permanent judge, is the former Chief Justice of Australia. The other judges are permanent judges of the Court.
Again, in that case, the nature of the defamatory statements is irrelevant for present purposes. The defendants in those proceedings, like the proceedings currently before the Court, were, at least in part, newspaper and digital news publishers.
The Internet forum, with which the Court dealt in Oriental Press, was an Internet or website address and was not a public Facebook page. Any person could browse the website, but only persons who were registered as members were able to post messages on the forum.
Membership of the forum was dependent upon acceptance of rules, one of which was a prohibition on postings with objectionable content, including defamation. A registered user of the forum was given a forum nickname and was assigned a password. If the member were to violate the rules, the member might have her or his membership suspended or terminated.
The evidence in the proceedings in Hong Kong was that there could be as many as 30,000 users online at any given time and that, during peak hours, over 5,000 postings could be made each hour. Two administrators were employed to monitor forum discussion for 6 to 8 hours per day; their job being to remove objectionable content by deleting objectionable postings or discussion threads and to field complaints: Oriental Press.
The Court referred to the judgment of the High Court of Australia in Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 and Gutnick: Oriental Press at [18]. It also referred at [20], in the same manner, and to the same effect, to [18] of the judgment of her Honour, Abella J, in Crookes v Newton [2011] 3 SCR 269.
The Hong Kong Court of Final Appeal also discussed the issue of innocent dissemination and referred to the judgments in Emmens, supra; Vizetelly, supra; and to the judgment of Gaudron J in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586; [1996] HCA 38 ("Thompson").
The Hong Kong Court of Final Appeal determined that a person who might rely upon the defence of innocent dissemination was, nevertheless, a publisher and the innocent dissemination of material did not negate the status of a person in that situation as a publisher: Oriental Press at [30], [31] and [32]. I respectfully agree with that analysis.
The Hong Kong Court of Final Appeal also analysed the legal principles associated with liability in relation to noticeboards and graffiti: see Oriental Press at [34] and following. With great respect to the Hong Kong Court of Final Appeal, I respectfully agree with their analysis in relation to innocent dissemination as requiring the persons to be publishers and their analysis of the authorities dealing with the principles associated with graffiti and noticeboards. It is unnecessary to recite or to summarise that analysis. That analysis is, in my view, the only one available from the terms of s 32 of the Defamation Act.
The reasons for judgment in Oriental Press, at [46] and following, deals with the differences between innocent dissemination, on the one hand, and, on the other hand, the notice board line of cases. At [47], the Court said: "[47] As analysed above, the innocent dissemination defence is a common law doctrine developed to mitigate the harshness of the strict publication rule. While it does not avail the first or main publishers it brings relief to subordinate publishers who have knowingly participated in the process of disseminating the article concerned. The defence is therefore applicable to persons who are admittedly publishers, although playing a subordinate role, allowing them to be exonerated from liability if they discharge the burden of showing that they did not know that the article which they had helped to disseminate contained the offending content and that such lack of knowledge was not due to any lack of reasonable care on their part."
The Hong Kong Court of Final Appeal then contrasts the occupiers in noticeboard and graffiti cases and refers, expressly, to the judgment of Greene LJ in Byrne v Deane, supra. The Court comes to the view, with which, in part, I respectfully disagree, that the rules in this area are not concerned with relieving the liability of a person who is a publisher, but, rather, identifying whether or not an occupier is constituted a publisher. The builders or owners of a wall or bus shelter do not participate in publication until they endorse the use of the facility for publication by another. To that extent I respectfully agree with the analysis. However, a person who is a subordinate publisher is relieved from liability by the same rules. However, liability is not an issue with which I am dealing; publication is.
In those circumstances, the Court reiterated that the onus, in relation to the noticeboard and graffiti cases, rests on the plaintiff to prove that the occupier was not aware of the defamatory material. Obviously, that proof may be by direct evidence or by inference.
Importantly, in dealing with the relationship between the respondents in the appeal and the third-party commentators, the Court made reference to the active role of the media establishments. At [51] and following, the Court said: "[51] The respondents plainly played an active role in encouraging and facilitating the multitude of internet postings by members of their forum. As described in Section B of this judgment, they designed the forum with its various channels catering for their users' different interests; they laid down conditions for becoming a member and being permitted to make postings; they provided users browsing their website access to the discussion threads developed on their forum; they employed administrators whose job was to monitor discussions and to delete postings which broke the rules; and they derived income from advertisements placed on their website, a business model which obviously benefits from attracting as many users as possible to the forum. [52] The respondents were therefore, in my view, plainly participants in the publication of postings by the forum's users and in that sense they were publishers from the outset, it being in issue whether they were first or main publishers or merely subordinate publishers. I accept Mr Thomas SC's submission that they were in a substantively different position from the occupiers in the notice board and graffiti cases. The relevant question in the present case is whether, as publishers, the respondents are entitled to rely on, and have established, the defence of innocent dissemination, relieving themselves of the strict publication rule which would otherwise be applicable. The question is not whether, originally being non-publishers, they have, when fixed with knowledge of the defamatory postings, demonstrated their consent to and adoption of those postings, turning themselves into publishers."
I too respectfully disagree with the reasoning of the English Court of Appeal in Tamiz v Google Inc, supra, for the reasons already given and for the reasons given by Justice Ribeiro PJ at [53] in Oriental Press.
Most importantly, for the issue before the Court in these proceedings, the Hong Kong Court of Final Appeal discussed the crucial question of whether the respondents in that case are subordinate publishers entitled to rely on the defence of innocent dissemination or whether, in the circumstances before the Hong Kong Court, they were primary publishers.
The reasons for judgment of the Hong Kong Court of Final Appeal rely on the history of distinctions in this area being based upon the fundamental proposition that, prior to the advent of the Internet and webpages, defamation laws rested upon the analysis that the publication was from one to many. Thus, a primary publisher of the newspaper disseminated the material to many readers, but was one entity (albeit that there may be other defendants who are liable by virtue of their authorship of a particular article). Similarly, radio and television broadcasts are published by one person and disseminated to many.
The same can be said of defamations that occur in email publications. The reasons for judgment of Justice Ribeiro PJ relied, amongst other judgments, on the judgment of the High Court in Thompson, supra, and in particular the joint judgment of Brennan CJ, Dawson and Toohey JJ at 589-590.
The Hong Kong Court of Final appeal judgment then contrasted publications that may occur on the Internet, which may involve a qualitatively different process, and which, in the words of Justice Ribeiro PJ at [59], are "characterised by open, interactive, 'many-to-many' communications made and accessed on platforms provided by internet intermediaries". His Honour then discussed the respondents in those proceedings as being part of the class of "new intermediaries" of that kind.
As a consequence, they were not the originators of the defamatory comments, but the defamatory comments were the result of the respondents having facilitated the speech of others in a forum hosting a large volume of communications. His Honour, with which the other judges of the Court agreed, then dealt with the usual authorisation issue, contrasting the authorisation to which the High Court of Australia referred in Thompson, when a television channel retransmitted a broadcast previously disseminated by another television channel, as against the notion that the provider of an Internet platform facilitating many comments was authorising in a "sweeping, undifferentiated authorisation on each of them to post whatever unlawful and objectionable postings they may choose to post".
The foregoing proposition, the Court said, was inherently improbable. As a consequence, the Court rejected the appellants' submission that the media respondents authorised the comments.
The Court then dealt with the submission that the media respondents acted as the first or main publishers of the impugned defamatory material and the "but for" argument that, if the server were not to operate, the comment would never have been published. In the analysis, the Hong Kong Court of Final Appeal made it clear that one could not, in determining liability, ignore the originators of the comment who were "upstream" from the owner of the website.
With respect, the depiction of the owner of an Internet forum as a primary publisher does not absolve persons upstream from a liability they may otherwise possess. The journalist may have a liability, notwithstanding that the publication occurs in a newspaper: Webb v Bloch (1928) 41 CLR 331 at 363.
Similarly, the writer of a letter to the editor may be liable in defamation for comments that are made in the letter, even though the newspaper that printed the letter would, also, be a primary or first publisher.
Another example of such a situation is where, for example, a person is interviewed by a television current affairs or news journalist and makes defamatory comments, which are reproduced in the television broadcast. Each of the interviewee and the broadcaster are liable as primary publishers and, if the interviewee provided the interview in the expectation that it would be published by the television broadcast, liable for the damages occasioned thereby.
While I have spent more time than is probably necessary, or appropriate, in analysing the judgment of the Hong Kong Court of Final Appeal, I have done so because of its obvious relevance to the issues presently before the Court. The Hong Kong Court of Final Appeal set out criteria by which the determination of whether a person or persons should be classified as a primary or first or main publisher should be discerned. It did so at [75] and [76], which are in the following terms: "[75] As the authorities on the innocent dissemination defence show, in a newspaper setting, the journalist, editor, printers and (vicariously) the newspaper proprietor are all treated as first or main publishers. In my view, this is because they are persons whose role in the publication process is such that they know or can be expected easily to find out the content of the articles being published and who are able to control that content, if necessary preventing the article's publication. It is because they occupy such a position that the law has held them strictly liable for any defamatory statements published. [76] In my view, the abovementioned characteristics supply the criteria for identifying a person as a first or main publisher. They are (i) that he knows or can easily acquire knowledge of the content of the article being published (although not necessarily of its defamatory nature as a matter of law); and (ii) that he has a realistic ability to control publication of such content, in other words, editorial control involving the ability and opportunity to prevent publication of such content. I shall, for brevity refer to them as 'the knowledge criterion' and 'the control criterion' respectively." (Emphases in the original.)
With great respect to the reasons for judgment of Justice Ribeiro PJ, there is a degree of vagueness in the first criterion of a first or main publisher, as stated in [76] above. It is not absolutely clear, from the comments of his Honour, whether the knowledge, or the capacity easily to acquire the knowledge, is intended to be knowledge prior to publication or subsequent to publication. I take the view that it is so intended.
This vagueness is exacerbated by the second criterion, which refers to a realistic ability to control publication of such content. Again, is that intended to apply at a time prior to its publication? Again, I take the view that it is. Further, given the view I take, it seems that the second criterion, if it were to apply to circumstances prior to publication, would suffice to render the owner of the webpage a primary, first or main publisher: see the extract from Thompson, below. If there is control of content, then knowledge may be acquired by the use of sufficient resources. For reasons that will become obvious, I need not deal with that issue further.
As was made clear in Oriental Press, the issue of control (and knowledge) was a fundamental issue in the judgment of the High Court in Thompson, supra, in which, in the reasons for judgment of the plurality, the High Court said, at 589-590: "It is true that Channel 7 did not participate in the production of the original material constituting the program. But Channel 7 had the ability to control and supervise the material it televised. Channel 7's answer is that time did not permit monitoring the content of the program between its receipt at Black Mountain and its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means follows that Channel 7 was merely a conduit for the program and hence a subordinate disseminator. It was Channel 7's decision that the telecast should be near instantaneous, a decision which was understandable given the nature and title of the program but which was still its decision."

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