Von Marburg v Aldred & Anor [2015] VSC 467

2 The plaintiff does not currently have a statement of claim. His last pleading was struck out by my order on 19 June 2015. That was his fifth attempt at pleading his claims. The presently proposed pleading is the plaintiff's second further attempt since that order.

3 The defendants, particularly the second defendant, oppose the plaintiff's application for leave to file an amended statement of claim in the form of a document entitled 'Second Statement of Claim' dated 6 August 2015. The second defendant contends that there is no tenable claim pleaded that he published either publication and that the application for leave to amend is futile. The first defendant has adopted a 'wait and see' approach and did not put any substantive submission to the court, other than to adopt the second defendant's submissions to the extent, which was not identified, that those submissions assisted him.

4 The plaintiff puts his case that the second defendant published the defamatory material in two ways. First, he contended that the second defendant was a primary publisher in the sense that he could, and did, direct and instruct the first defendant, as administrator of the Facebook page, about what ought to be published or deleted on it. Alternatively, the plaintiff alleged that the second defendant was a subordinate, or secondary, publisher in that, knowing of the substance and content of the publications and having had the opportunity to remove those publications from the Facebook page, he approved, ratified or adopted the publications.

5 The first publication (post) appeared on the Facebook page on or about 16 October 2014. It was in these terms:

[Photo of Plaintiff]

Here is a photo of the only doctor in Albury Wodonga who would stand outside a legal, Women's Health Clinic, violating women's privacy! This is, in our opinion, highly unethical and against the public statement by the highest authority of Women's Health in Australia, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists:

RANZCOG Statement, April 2013: "Women have the right to access any medical service without their privacy being infringed or being subjected to harassment".

Ref: www.ranzcog.edu.au Women's Health Statements C-Gyn 17

This is why the petition to NSW government banning anti-abortion protesters outside Women's Health Clinics MUST succeed.

6 The plaintiff makes no allegation about the originator of the first publication. It is not pleaded that the second defendant is the author or the originator of the first publication.

7 Once the first publication appeared on the Facebook page, it attracted comments posted directly to the Facebook page, authored by others. The second publication is comprised of three such comments (comments)[1] posted on 16 and 17 October 2014.

(a) Under the name Julie Newell - 'Is this Roland Van Marburg, the "Butcher" ...';

(b) Under the name Anna Ferrinda - 'Careful with those rosary beads Roland, wouldn't want to accidently [sic] snort them up with your cocaine';

(c) Under the name Cade Newell - 'To each his own Erin, but the man butchered me during surgery and then provided no post op care whatsoever. Julie has a right to express her personal opinion as do you.'

8 I will briefly summarise the operation of a Facebook page for the purposes of this application.

9 An internet service provider may be a passive medium for publication in the same way as is a notice board or a wall of a building. Facebook calls part of its profile spaces that are passive mediums for publication by third parties, 'walls.' However despite use of the same terminology, a Facebook 'wall' is substantially more complex than a physical wall. A Facebook 'wall' may feature multi-layered privacy settings, and complex systems governing each individual's capacity to view, add, alter, or exchange content on the 'wall.' An individual such as the administrator of the 'wall' will have greater control over the content of the wall than a third party viewing or adding to that content.

10 Facebook permits individuals or organisations to operate a platform, i.e. a Facebook Page (which includes a 'wall'), specifically for communication, either to an identified and limited group when access to the platform is limited, such as to members, or to other Facebook users at large. Although the Facebook page may be owned by Facebook Inc or a related company, it is created and maintained by an organisation or individual using the Facebook platform, (whom I shall call 'the sponsor'), whose representative may act as an administrator, controlling the content of the page. An administrator, acting on behalf of the sponsor, may publish primary material on the page. In this instance the sponsor is alleged to be Rights to Privacy Albury, described by the plaintiff as 'an association', and the administrator is alleged to be the first defendant.

11 Facebook allows an administrator of the page to adjust its settings to permit communications by way of third party comment on or in response to the content it creates and posts. The platform can operate to permit anyone, who has navigated to that page and read what is displayed, to place material (such as a statement, photograph, video, hyperlink etc.) on the page that is a communication to any internet user who subsequently navigates to the page or refreshes the existing view of the internet platform in their web browser and thus downloads the communication from the internet to their own computer where it appears in the web browser software. Administrators can modify the setting of the page with the result that that such communications by third parties may occur without the sponsor being aware, when the communication is first posted, of the content of the communication, and may use software to automatically 'filter' communications posted to the page according to some pre-determined rules.

12 Defamation law distinguishes between primary (or intentional) publication, and subordinate (or inactive) publication. I put to one side the position of the originator. As Gatley[2] states:

The person who first spoke or composed the defamatory matter (the originator) is of course liable, provided he intended to publish it or failed to take reasonable care to prevent its publication.

13 The originator of a Facebook post or comment is analogous to the journalist who wrote the defamatory statement published by a newspaper. Here, I am concerned with the position of intermediaries in the process of publication, who are the equivalents in the digital age of editors, proprietors, printers and newsagents in respect of newspapers, and who may intentionally lend their assistance to the dissemination of material.

14 What the plaintiff must prove to establish publication was thought to be well settled. For there to be liability as a publisher of defamatory material, the defendant must in some way knowingly lead or contribute to and be responsible for the communication complained of. In Webb v Bloch,[3] Isaacs J said:

The meaning of "publication" is well described in Folkard on Slander and Libel, 5th ed (1891), at p.439 , in these words: "The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him." In Starkie on the Law of Slander and Libel, 1st ed (1830), vol. ii, at p.29, it is said: "The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act" &c. In Parkes v Prescott, Giffard QC quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." In R v Paine it is held: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person ... (Citations omitted) (Emphasis in original)

15 Whether an intentional act of publication amounts to publication for the purpose of defamation law is able to be determined according to the test set out in Webb v Bloch. In submissions, the plaintiff relied on the recent New South Wales Court of Appeal decision in Dank v Cronulla Sutherland District Rugby League Football Club Ltd[4] as authority for the proposition that in order for a defendant to be jointly liable as an primary publisher, the plaintiff must allege and prove either control or assent. The case bears no analogy with the present pleading. Publication in that case was in materially different circumstances that were an orthodox application of the test in Webb v Bloch.

16 The principles governing subordinate publication are derived from the English Court of Appeal decision in Byrne v Deane,[5] first applied in Australia by Hunt J in Urbanchich v Drummoyne Municipal Council.[6]

17 In Byrne v Deane,[7] an anonymous notice posted on the wall of a golf club contained an allegedly defamatory statement against Byrne. The club rules provided that no notices should be posted without the consent of the club's secretary. The defendants were respectively the proprietors and secretary of the club. They had seen the notice but had not removed it. The Court of Appeal, by a majority, found that the defendants were responsible for the publication of the notice because, having power to remove the notice, they had refrained from doing so.

18 Greer LJ[8] said that the defendants took part in the publication of the notice because once they had known that the notice was on the wall they must have had knowledge that if they did not remove it, but allowed it to remain posted on the wall, it would be read by others to whom it would convey its defamatory meaning. Slesser LJ[9] considered that there was a tenable claim of publication against the club secretary. She had read the notice and, having dominion over the walls of the club under the club rules, had promoted and associated herself with the continuance of the publication from the date when she read it by not removing the notice. Green LJ[10] stated the test to be whether, having regard to all the facts of the case, is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put.

19 The same conclusion was reached in the United States of America in Heller v Bianco[11] when the owner of a tavern who was told about a defamatory statement on the wall of the tavern bathroom and had failed to remove it within a reasonable time was held liable for defamation on the basis that the failure to remove the defamatory statement amounted to a republication of it.

20 In Urbanchich v Drummoyne Municipal Council[12] Hunt J concluded the defendant published defamatory posters glued to bus shelters under the defendant's control. The defendant was told about the posters and asked to remove them, but delayed in doing so. Hunt J said:

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.

21 These authorities underpin the clear rule that knowledge of the existence of a communication, and acceptance of responsibility for it, are pre-requisites for liability as a subordinate publisher.[13] However the application of these principles to internet publication appears to pose some difficulty. There is confusion over how the distinction between intentional and inactive publication applies, largely driven by the fact of software automation.

22 Commencing with Bunt v Tilley,[14] there is a line of authority in England and Wales[15] that has considered the position of internet intermediaries as publishers. In Bunt, Eady J granted to the defendants summary judgment on claims against an internet service provider that performed no more than a passive role in facilitating postings on the internet. Eady J considered that publication was a question of fact and it had to depend on the circumstances of each case whether or not publication had taken place.[16] Eady J stated:

In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for "corporate sponsorship and approval of their illegal activities". I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility ... Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.[17] (Emphasis in original)

23 In Tamiz v Google Inc,[18] the defamatory claim arose from comments on a blogging platform provided by Google. The platform allowed any internet user to create an independent blog, supplied design tools to help the users create layouts for their blogs, and permitted the use of the platform's URL if required. Google could remove or block access to material failing to comply with its terms of use once its attention was drawn to such material. Google was first notified of the complaint about the comments when it received a letter of claim, some two months after the comments were posted. Five weeks later Google forwarded the complaint to the blogger who, three days later, voluntarily removed all impugned comments. Eady J held that Google was not a publisher and struck out the claim.

24 The Court of Appeal held that Google was not a primary publisher of the comments at common law since, although it facilitated publication of the blog and the comments posted on it, it had no prior knowledge of or control over the content of the blog which was written by an independent person with whom the defendant had no relationship of employment or agency. Further, prior to the complaint, Google was not a subordinate publisher of the comments since it neither knew nor ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. However, it was open for the court to find that Google had allowed defamatory material to remain on its platform after it had been notified of its presence and had had a reasonable time within which to remove it, and Google could be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a secondary publisher of it. Thus, the claim ought not to have been dismissed on the ground that the defendant was clearly not a publisher of the comments at common law. The appeal was dismissed on other grounds.

25 Richards LJ's reasons involved a careful analysis of precisely how that Blogger platform was structured and operated.[19] Richards LJ noted that Google did not seek to exercise prior control over the content of blogs or comments posted on them, but it defined the limits of permitted content and had the power and capability to remove or block access to offending material to which its attention is drawn. His Lordship stated:

By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc and do not act in any sense on its behalf or in its name. The claimant's reliance on principles of vicarious liability or agency in this context is misplaced.

I am also very doubtful about the argument that Google Inc's role is that of a secondary publisher, facilitating publication in a manner analogous to a distributor. In any event it seems to me that such an argument can get nowhere in relation to the period prior to notification of the complaint. There is a long established line of authority that a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory ... Since it cannot be said that Google Inc either knew or ought reasonably to have known of the defamatory comments prior to notification of the claimant's complaint, that line of authority tells against viewing Google Inc as a secondary publisher prior to such notification ...

26 It was in respect of the period after notification to Google of the complaint that Richards LJ differed from Eady J's view that Google's role in respect of Blogger blogs was a purely inactive or passive one such that the absence of any positive steps by Google in relation to continued publication of the comments in issue was not significant. The judge applied the principle from Byrne v Deane. Accepting that the inquiry was fact sensitive, and having found that Google was able to exercise power to remove material, if it could be inferred that Google associated itself with, or made itself responsible for, the continued presence of that material on the blog, it could be found to be a publisher of the material.

27 A different approach was taken by the Hong Kong Court of Final Appeal in Oriental Press Group Ltd v Fevaworks Solutions Ltd,[20] which rejected the application of the rules set down in Byrne v Deane to the owner and operator of an online discussion forum. In Oriental Press Group Ltd v Fevaworks Solutions Ltd, the respondents were the providers, administrators and managers of a website that hosted a popular internet discussion forum in Hong Kong. The appellants sued them for libel in respect of defamatory statements posted by certain users of that forum. An issue before the Hong Kong Court of Final Appeal was whether the platform providers were in law to be regarded as publishers of the defamatory postings. Mr Justice Ribeiro PJ, with whom the other members of the Court agreed, held that the Byrne v Deane principles do not apply to internet platform providers on the basis that the internet provider is in a wholly different position from that of an 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.

28 I do not accept the trespasser distinction as relevant, because the court's focus should be on the conduct of the defendant, not that of the third party publisher. If conduct of the defendant that permits an inference that he or she consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that communication, the fact that the initial publication was 'the defamatory act of a trespasser' should be no more than a fact relevant to the question whether the defendant is a publisher of the communication. The nature or character of the originating act of publication is not determinative but it may be relevant.[21]

29 Ribeiro PJ's reasoning about the Byrne line of cases may be explained by his conclusion that the provider of an internet discussion platform falls from the outset within the broad traditional concept of 'a publisher', a characteristic apparently not shared by a golf club or other occupier who puts up a notice board on which a trespassing message is posted. I do not read Byrne as Ribeiro PJ has read it. The club in Byrne allowed publication on its notice board, but subject to a condition that 'no notice or placard shall be posted in the club premises without the consent of the secretary.' Byrne emphasised the trespassing nature of the act to show that it was within the power of the defendants in that case to remove the impugned publication. Greene LJ stated:[22]

But however that may be, the affixing of this notice to the walls of the defendants' property, as it was not authorized by the rules of the club, was in fact a trespass, and they were entitled as proprietors to remove the trespassing article from the walls. It was a matter which fell right outside the rules of the club; it was not authorized and, therefore, it appears to me that they had ample power, notwithstanding the position and rights of the committee, to remove something from their property the presence of which could not be justified under the rules.

30 In Murray v Wishart[23] the New Zealand Court of Appeal dealt specifically with the issue of publication of third party comment posted to a Facebook page. The court struck out the plaintiff's allegations that the defendant published that comment. The plaintiff, Wishart, was the author of a book that concerned a controversial murder acquittal that continued to generate public interest in New Zealand. Learning of the impending publication of this book, the defendant, Murray, set up a Facebook page that he publicised with his Twitter account. Murray posted comments on Twitter and on the Facebook page criticising Wishart, as did numerous other people. One of the issues on the appeal was whether the primary judge was correct in finding an arguable case that Murray was the publisher, as administrator and sponsor, of the third party comments on the Facebook page.

31 The primary judge found that while Murray could exercise considerable control over whether comments remained on the page, he could not control the act of initial posting. Murray was frequently active in removing postings that he considered inappropriate, had blocked Wishart, who had warned Murray about defamatory postings, and his supporters from the page. Following an extensive review of the authorities, the court concluded:[24]

These concerns lead us to conclude that the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher. That is consistent with at least some of the authorities to which we have referred, (Sadiq v Baycorp (NZ) Ltd, A v Google New Zealand Ltd and Davison v Habeeb) and with the Law Commission's analysis. It conforms with the approach in Byrne v Deane, which is, we believe, the most appropriate analogy and with the decision in Urbanchich v Drummoyne Municipal Council. It makes the liability risk of a Facebook page host no greater than that of an organiser of a public meeting - another appropriate analogy, in our view. (Citations omitted)

32 Finally, the plaintiff referred me to Trkulja v Google Inc (No 5),[25] a decision concerning publication by the medium of the Google search engine. The jury's verdict established Mr Trkulja's entitlement to damages against Google in respect of certain publications. Google applied for judgment notwithstanding the jury's verdict. Google contended that Mr Trkulja was required to show that Google was in some degree accessory to the communication of the material complained of and that it had an intention to publish that material. Beach J (as he then was) refused the non-obstante application. His Honour said:[26]

The question of whether or not Google Inc was a publisher is a matter of mixed fact and law. In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc's search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.

33 Beach J distinguished the English cases[27] finding a factual basis in the evidence that justified the jury's verdict in respect of publication, but his Honour went further and stated:[28]

In any event, and putting to one side the factual differences I have identified, to the extent that there is anything written in the judgments of Bunt v Tilley, Metropolitan Schools Ltd v Designtechnica Corporation and Tamiz v Google Inc that might be thought to compel the conclusion that on the facts of the present case it was not open to the jury to conclude that Google Inc was a publisher of either the images matter or the web matter, then the same does not represent the common law of Australia. Further, while on the facts in Bunt, the defendants were correctly described as "internet intermediaries" (whatever may be the legal consequences of such a description), it is, with respect, doubtful that that same description can be applied to an internet search engine provider in respect of material produced as a result of the operation of that search engine. That said, any such "internet intermediary" is, in any event, performing more than the "merely passive role ... [of] facilitating postings" (Cf Bunt). (citations omitted)

34 His Honour noted that Eady J did[29] -

not appear to have given any consideration to the fact that internet search engines, while operating in an automated fashion from the moment a request is typed into them, operate precisely as intended by those who own them and who provide their service.

35 These further observations have not found favour in New South Wales,[30] New Zealand,[31] or in England and Wales.[32] However, that controversy is not relevant on this application. Search engines have different software and network architecture compared to a Facebook page, or blogging platforms, or online message boards. Search engines respond to search terms entered by the third party who has navigated using their web browser to the search platform. A search engine then displays links to material that may be downloaded in the user's web browser. The material displayed to the third party is determined by the reaction of software (the search engine) to the data input from the third party. The automated function of a search engine is, mostly, not replicated in the publishing role associated with Facebook page. A more limited automated role might be found with filtering software for moderation purposes, but the plaintiff has not pleaded any relevant allegations and the issue does not arise.

36 It is clear from this review of the cases that liability may attach to those entities or individuals that operate or control online platforms whether as primary or active intermediates or as subordinate or inactive intermediates. The inquiry will always be fact sensitive, which has important implications for pleaders.

37 I consider the applicable principles in respect of pleading internet publication in defamation proceedings to be these:

(a) To allege that a defendant is a primary publisher of defamatory material on a Facebook page when that defendant is neither the author nor the originating publisher of the communication, two matters may need to be alleged. First, the pleading could allege that the defendant was instrumental in the act of publication, when it occurred, in that he intentionally was, in any degree and by whatever means, complicit in the acts of making or authorising the communication or failed to take reasonable care to prevent its publication. It is sufficient if the defendant knew of the content of the communication without actually appreciating its defamatory nature. (Knowledge factor)

(b) Second, in the absence of complicity in the conduct of the author and/or originating publisher of the communication or an employment/agency relationship, the pleading could allege that the defendant had the ability to control whether publication occurred. A person who exercised control over publication, or the published content, of the communication independently of the author or originator, at the time of publication, is a primary publisher. (Control factor)

(c) To allege a subordinate publication, a plaintiff should allege that the defendant acquired knowledge of the existence of the impugned publication. An awareness of the existence of the impugned material is a precondition before an internet intermediary such as an administrator or sponsor of a Facebook page will be held to be a publisher. I prefer the approach of the England and Wales Court of Appeal in Tamiz and the New Zealand Court of Appeal in Murray that applied the analogy of the pre-internet cases, to the approach of the Hong Kong Court of Final Appeal in Oriental Press Group. Technology creates no reason for a change in the policy of the law. What it requires is consideration of different facts. When a relevant party communicates a defamatory statement by the use of an internet platform, such as Facebook, through a medium such as a comment button or other invitation to post a communication to the platform, the internet intermediately is not the publisher of it if not aware of its existence. (Knowledge factor)

(d) When considering subordinate publication, the second limb of the test for primary publication, namely the control factor, gives way to a test of ratification in which control is an element. The internet intermediary must have sufficient responsibility for the content on the Facebook page, whether as owner, sponsor, lessee, administrator or moderator to exert control over its content. The applicable rule is that a defendant will be liable as a subordinate publisher[33] when, aware of a communication posted by another on a Facebook page (or internet platform) within its control whether by actual personal observation or by being informed of its existence, the defendant fails to remove or terminate the communication, but only if circumstances are present that permit the conclusion that the defendant is responsible for, or has ratified, the continuing publication of that communication. The question of fact will usually be whether the defendant has acquiesced in or authorised or ratified the communication. (Ratification factor)

(e) Whether that ratification inference be adopted is a question of fact in all of the circumstances, which will include the manner in which the internet platform is structured, referring to the architecture of its software,[34] how it is operated or controlled by its sponsor, and the role of the defendant in such matters. The later issue may require attention to the circumstances of the presence of the communication on the medium before the defendant knew of it, the nature of the defendant's awareness of the communication, the requirements for removing or expunging it, and the circumstances of the continued presence of the communication after he or she knew of it.

38 I now turn to apply these principles to the facts in issue.

39 If proved at trial, the plaintiff's allegations against the second defendant as primary publisher are that he was a leader and a public spokesperson for Rights to Privacy Albury and a person also exercising control over the content of the Rights to Privacy Albury Facebook page in that he was in a position to, and did -

(a) direct and instruct the first defendant as to what should be published or deleted, as the case may be, on that Facebook page;

(b) post comments on the Facebook page as and when he sought fit.

40 There is no allegation that the second defendant knew that either publication was posted when that occurred. It is not alleged that the second defendant is the originator of the post, or that the second defendant was instrumental, or complicit, in the act of posting either publication on the Page or that he failed to take reasonable care to prevent their publication. On the principles set out above, the material allegations in the pleading that might establish the second defendant as a primary publisher of the publications are deficient.

41 I should note that it is alleged, in support of an inference that the second defendant knew the substance and content of both publications at the time of their initial posting, that the first publication refers to the website of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and to 'highly unethical conduct'. The second defendant is a member of that College. However, these references are in the particulars of the allegation that the second defendant was a subordinate publisher. In that context, I will return to this particular allegation.

42 The plaintiff's particulars reveal how the plaintiff proposes to establish his allegation that the second defendant controlled the content of communication on the Page and thus that the second defendant was a primary publisher. Looking at each particular of the allegation in turn exposes the inadequacy of the pleading.

43 Particulars of the second defendant's control of the first defendant first refer to his solicitor's correspondence, dated 20 November 2014, which stated that the second defendant had instructed and directed the first defendant to remove certain statements from the Facebook page. At its highest, this appears to be an admission by the first defendant that the second defendant had exercised an opportunity to instruct and direct the first defendant as to what should be deleted on that Facebook page. The plaintiff submitted that the letter showed the extent of the domain and control that the second defendant exercised over the first defendant. The context is important and reference to the particularised correspondence shows that it does not, and cannot, establish the material allegation.

44 When the letter is read, the reactive nature of the second defendant's alleged actions is unmistakably clear and the context of the statement that is relied on by the plaintiff can be understood. The instruction or direction was given between 12 and 20 November 2014, and followed on service by the plaintiff of a Concerns Notice dated 31 October 2014 and a draft statement of claim. The letter of 20 November 2014 stated:

Our client denied any wrongdoing. Furthermore he is not a publisher or author of the alleged defamatory material. At the instruction and direction of the 2nd Defendant and without any admission of liability, our client has removed the alleged defamatory statements from the site as set out in paragraph 20[35] of the Affidavit of the Plaintiff sworn on 12 November 2014.

45 The particular could support an inference that the second defendant gave an instruction to delete comments from the Facebook page in November 2014. It could support an inference that, at the relevant time in October 2014, the second defendant had the authority to instruct the first defendant to delete a post or comment. What could not be tenably inferred is that the second defendant could have taken such action when the post or comment was first posted because he was exercising pro-active control over the content of the Facebook page at the time.

46 A competing inference is plainly open;[36] that the instruction was given because the second defendant was a leader and a public spokesperson for Rights to Privacy Albury and was reacting to the plaintiff's complaint by his Concerns Notice. Although the question of the proper inference is for the tribunal of fact, the difficulty with the particular is that the inference, whatever it be, cannot establish knowledge or tie the exercise of control by the second defendant over the content of communications being published on the Facebook page at the relevant time. That such control must be contemporaneous with publication is necessary for an allegation of primary publication. It is fanciful to assert that the particularised conduct is sufficient to make out the necessary material allegation - that the second defendant directed and instructed the first defendant as to what should be published or deleted, as the case may be, on the Facebook page at the time of publication.

47 The second particular is that on or around 30 August 2014 the first defendant stated that he had blocked a user 'as per the request of the second defendant.' Here the language of the pleading strays from posts and comments to messages. Counsel suggested that it should be correctly understood as a private post on the Facebook page that is not publically displayed and that it supported an inference that the second defendant had the power, which he exercised, to direct and instruct what could appear on the Facebook page by way of posts and comments. This particular is vague. I would not permit it for its tendency to prejudice, embarrass or delay the fair trial of the proceeding.

48 Further, this particular, and the submission in respect of it, obfuscates the question of whether the control about what was published on the Facebook page was being exercised by the second defendant at the relevant time. No inference can reasonably be drawn from control being exercised by the second defendant over posts or comments on the Facebook page on 30 August 2014 that would support the pleaded allegation of primary publication in mid-October. The particular does not allege any conduct of the second defendant. The tribunal of fact needs to draw from the particular a preliminary inference of a request by the second defendant that a 'user be blocked'. There is no allegation of the conduct of the user who was blocked by the first defendant, of the conduct engaged in by the second defendant, or of the circumstances in which the second defendant made that request. The circumstances of the blocking of the 'user' are not linked or related to activities of posting and commenting. There is no reasonable basis for any inference from what ever occurred on 30 August 2014 that supports or might establish the material allegation pleaded that the second defendant directed and instructed the first defendant as to what should be published or deleted, as the case may be, on the Facebook page on 16 and 17 October 2014.

49 The second allegation is that the second defendant was in a position to and did exercise control over the contents of the Facebook page because he posted comments on the Facebook page as and when he thought fit. This allegation is supported by particulars of six comments attributed to the second defendant. Counsel accepted in argument that it was not the fact of posting a comment but the substance of the comment that is relevant. The first difficulty is that the allegation appears confined to comment (the second publication) rather than to posts (the first publication) or is ambiguous because of imprecise use of terminology. The significance of this is that read literally the allegation is about comments posted by the second defendant when anyone who navigates to the Facebook page can post a comment. That is not a circumstance that supports any inference of control over the communications on the Facebook page by the second defendant.

50 Turning to the six comments particularised, the first comment is the first publication. This is properly characterised as a post rather than a comment and enlivens the ambiguity in the pleader's use of terminology. As I have noted, the plaintiff does not plead as a material fact who is the originator of the first publication. The difficulty with the particular is that it effectively alleges that the second defendant exercised control of the Facebook page by being the originator of the first publication, and it does so by cross referencing a particular of the allegation that the second defendant was a subordinate publisher.

51 I would not permit this reference to paragraph 9(F) in the particulars to paragraph 3(c)(ii) for its tendency to prejudice, embarrass or delay the fair trial of the proceeding. If it be the plaintiff's case that the second defendant is an author and the person who directly posted the first publication, that allegation should be explicitly pleaded. It would be a proper basis for an allegation of primary publication against the second defendant. The second defendant is entitled to know what are the material facts being alleged against him. Such a key allegation cannot be buried in particulars.

52 The second comment is particularised as written and posted by the second defendant on 18 October 2014. It was later deleted on a date not known to the plaintiff. The plaintiff alleges that it shows that the second defendant participated in the dialogue represented by the comments posted to the Facebook page in response to the first publication. In that context, the comment can support an inference that the second defendant was aware of the comments appearing above his comment on the Facebook page. However, the fact that the second defendant posted this comment can only show that the second defendant could post to the page. In that respect he was no different to any member of the public who navigated to the page, read the existing post and comments, and then posted a comment. The comment does not support the allegation that the second defendant exercised control over the contents of the Facebook page on 16 and 17 October 2014. This particular cannot support the pleaded allegation.

53 The third comment was posted on 7 November 2014, and is particularised as written and posted by the second defendant. It is a particular of the knowledge of both defendants. By reference to the particulars alone, the inference that the comment was written and posted by the second defendant, not the first defendant, is not reasonably open to a tribunal of fact. By that date, the writ in this proceeding had been served and it is the subject of the comment, but the comment nominates the defendants to the writ as being the Facebook website and the administrator (the first defendant). There is no reference to the second defendant. Facebook Australia Pty Ltd was originally the third defendant in the proceeding but the plaintiff no longer brings any claim against the third defendant. This particular cannot support the pleaded allegation.

54 The fourth comment is particularised by cross-reference to paragraph 10, particular B(i), as a particular of the opportunity of both defendants to remove the first and second publications from the Facebook page. The comment is one that is said to have been deleted at an unspecified time. However, in the context of the particulars to paragraph 3 of primary publication, the focus is on posting rather than removal of the comment. This particular, when considered in the context of the paragraph 3 allegation is that on 7 July 2014 the second defendant posted a comment thanking the first defendant for removing 'a bizarre post'. The tribunal of fact could accept that the second defendant could post comments as and when he sought fit, but could not draw an inference supporting the pleaded allegation, without further detail about the circumstances in which this comment came to be posted. This particular cannot support the pleaded allegation.

55 The fifth comment is also particularised by cross-reference to paragraph 10, particular B(v), as a particular of the opportunity of both defendants to remove the first and second publications from the Facebook page. The comment is alleged to be posted by the second defendant after this proceeding was issued, on 23 November, 2014. It refers to 'screen shots of posts he thought were 'defamatory' before the administrator had time to delete them' and without attempts by the subject of the imputation to contact Rights to Privacy Albury to request that they be removed. This particular cannot support the pleaded allegation.

56 The final comment is also particularised by cross-reference to paragraph 10. The comment, particular B(vi), is alleged to have been on the Facebook page from 28 March 2015 until late April 2015. It refers to conduct in response to complaints made by another person (Horsfall) who was named in comments posted on the Facebook page. The second defendant comments that the plaintiff would have received the same courtesy had he complained. The comment concludes 'RTP do not have full time professional moderators to watch 24/7. The moderators do their best, under at times, difficult circumstances ... We cannot be responsible for comments others make although we will continue to delete the most offensive ones'.

57 The second, fourth, fifth and sixth comments are particulars which, if proved, could persuade a tribunal of fact that the second defendant could post comments on the Facebook page as and when he thought fit. For the reason that there is insufficient detail provided about the posting of relevant comment to the Facebook page, the particulars do not go far enough to establish the pleaded allegation that the second defendant was a primary publisher of the two alleged publications because he was in a position to and did exercise control over the communications posted to the Facebook page by posting his own comments when he thought fit.

58 The comments (the fifth and sixth comments) that might permit an inference of control by the second defendant are not accompanied by particulars that, if proved, might permit the further inference that the second defendant was exercising control contemporaneous with the impugned publications over the content of communications on the Facebook page. The difficulty, which I have already noted, is that a competing inference is plainly open; that the second defendant, as a leader and a public spokesperson for Rights to Privacy Albury was reacting to the plaintiff's legal proceedings. Although, as I have also noted, the question of the proper inference is for the tribunal of fact, the difficulty with the particulars to this allegation is that the inference, whatever it be, cannot tie the exercise of control - by the second defendant by posting comments on the Facebook page - to be control in the relevant sense and at the relevant time of the content of communications posted on the Facebook page.

59 In argument, the plaintiff also drew attention to a comment posted by Munro on 10 September 2014 about removal of a photograph, and the reply by the first defendant that Munro should contact the second defendant about that. This comment is particularised as part of the subordinate publication case and is not referred to in the particulars to paragraph 3(c), but counsel submitted that it was a relevant particular of control of the content of the Facebook page by the second defendant. As the pleading is structured, this particular could not be a particular of either a relevant direction or instruction to the first defendant, or control, by the second defendant by posting such comments as he thought fit. It might be thought to be a particular of the second defendant exercising control over the contents of the page. How the plaintiff might rely on the comment, other than in its subordinate publication case, is not clearly articulated and I will not accept it as a further particular to paragraph 3(c) because of its tendency to prejudice, embarrass or delay the fair trial of the proceeding.

60 Another particular of control was put in argument, which is not pleaded at all. It was that on the instructions of the second defendant the first defendant had a filtering system in operation in respect of comments made to posts on the Facebook page. Counsel submitted that the second defendant controlled not only what might be removed from the page but also what was posted to it in the first place by a process of approval. It is unclear if the second defendant had access to this filtering system. The plaintiff does not allege the second defendant is an administrator of the page. Confusion is evident between the concepts of posts and comments and the conduct of posting, which was not helped by the absence of these allegations from the pleading.

61 When the plaintiff pleads for its primary publication case against the first defendant that posts would have to be approved before they were published, it is not clear whether the plaintiff is referring to posts or comments. Posts would have to be approved in the sense that only an administrator could post, given the settings of the page. The plaintiff alleges that one way in which it may be inferred that the first defendant exercised control over the content posted to the Facebook page follows from a comment posted in 19 September 2004 by the first defendant that he has set up 'post filtering and that posts on the RPA Facebook page would have to be approved before they were published'. The preceding sub-paragraph of the particulars refers to a comment, suggesting that the pleader had some distinction in mind between posts and comments. Two matters are clear. The filtering allegation is likely to concern comments, and is only made against the first defendant.

62 While the former is a matter of impermissible ambiguity in the pleading, the latter is more significantly flawed. The pleading does not allege what the filtering system was or any role for the second defendant in setting up or operating the 'filtering' of any communication posted to the Facebook page. The plaintiff submitted that the tribunal of fact could infer that the second defendant played a role in the filtering process, but in doing so draws on allegations made against the first defendant. If the plaintiff wishes to allege that such an inference ought to be drawn, it should have pleaded it against the second defendant with appropriate particulars.

63 I do not accept that the plaintiff's allegations can establish that at the relevant time and in respect of the impugned publications, the second defendant exercised any power that he may have had to control the content of that appeared on the site so as to establish that he was a primary publisher. Leave to file and serve the pleading alleging the second defendant to be liable as a primary publisher of the two impugned publications is refused.

65 The subordinate publication is set out in paragraphs 9-12 of the proposed pleading. The material allegations pleaded are:

(a) The second defendant knew the substance and contents of the publications from at least 16 October 2014.

(b) The defendants had the opportunity to remove the publications from the Facebook page on and from 16 October 2014.

(c) The defendants approved, ratified and/or adopted the first and second publications.

66 The second defendant makes four objections, two of which are said to be substantive and fatal to the application and two of which are said to be pleading points, implying they are capable of rectification by amendment.

67 Dealing firstly with the substantive points, the second defendant contends that there is no allegation that he has responsibility in any requisite sense for the Facebook page. I do not accept the second defendant's submission that this is a fatal flaw in the pleading. This objection is overcome by reference to what is alleged in paragraph 3 of the pleading. The plaintiff has alleged that the second defendant is a leader and a public spokesperson for the sponsor of the Facebook page and is also a person exercising control over the contents of the page by way of directions and instructions to the first defendant and by posting comments on the Facebook page as and when he thought fit. For the reasons discussed above, I do not think that the latter of these allegations is capable of establishing that the second defendant had sufficient responsibility for the Facebook page to exert control over its contents on 16 and 17 October when primary publication occurred, but the allegation has been adequately made that the second defendant had the power to direct the removal of the publications from the Facebook page. That is a sufficient allegation of adequate power to control communications for the purposes of subordinate publication.

68 The other flaw in pleading subordinate publication said to be fatal to the claim was the ratification allegation in paragraph 11 of the pleading. The circumstances that are alleged, if proved, could persuade a tribunal of fact that the second defendant consented to, or approved of, or adopted, or promoted, or in some way ratified the continued presence of the communications on the Facebook page from the time when he became aware of those communications because he could have, but did not, delete the material within a reasonable period of time. The second defendant objected that the particulars were not allegations of ratification but, if proved at trial, they are matters upon which the tribunal of fact could draw the necessary inference. Some qualification is necessary. The plaintiff cross-references his allegations that the second defendant posted comments on the Facebook page as and when he thought fit, which I have dealt with above. Secondly, the ratification inference is said to arise from the particulars of the second defendant's opportunity to remove the publications from the Facebook page by cross-referencing the particulars to paragraph 10 of the pleading, which I will presently discuss.

69 Turning to the pleading points, the second defendant accepts that the first requirement for subordinate publication, namely that the defendants knew the substance and contents of the publication, has been pleaded. However, while the second defendant is alleged to have the requisite knowledge from at least 16 October 2014, a number of the particulars deal with subsequent periods. In this respect, the pleading is embarrassing but that embarrassment could be alleviated by amendment as was suggested during argument.

70 The second defendant also objected that the allegation that he had the opportunity to remove the publication was flawed by the absence of an allegation of sufficient responsibility for the Facebook page to exert control over its contents. I have not accepted this submission.

71 I have concluded that the proposed pleading that the second defendant was a subordinate publisher has been defectively pleaded but may not be an untenable claim.

72 The second defendant submitted, with considerable force, that I should treat this proposed pleading as the plaintiff's final opportunity to properly identify his cause of action. I agree with the second defendant's counsel that the pleading has embedded problems. I was informed that this is the seventh attempt to plead a viable claim, which attempts have been made by experienced solicitors and three experienced members of counsel over a period of about 10 months. Further, I note that the impugned publications were accessible for a relatively short period of time and the plaintiff does not allege a substantial publication. The statement of claim only identifies a handful of people to whom publication was made.[37]

73 Having regard to my findings, I will hear further from counsel as to the appropriate orders to be made in disposition of the application and on the question of costs.

[1] I have distinguished 'posts' - the primary communications placed by or on behalf of the Facebook page administrator from 'comments' - the communications placed on the Facebook page by third party readers who have activated the comment option on the page. The first publication is a post and the second publication is three comments in response to the post. The word 'post' when used as a verb, can refer to the action of uploading a communication to a Facebook page, which can refer to both posts and comments.

[2] Mullis & Parkes, Gatley on Libel and Slander, 12th ed, 2013, [6.10].

[3] [1928] HCA 50; (1928) 41 CLR 331, 363-4, [1928] HCA 50. See also Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288, [130]-[137].

[4] [2014] NSWCA 288.

[5] [1937] 1 KB 818.

[7] [1937] 1 KB 818.

[11] 244 P 2d 757 (Cal Dist Ct App 1952). See also Scott v Hull 259 NE 2d 160 (Ohio Court of Appeal 1970), Cubby v Compuserve Inc 776 F Supp 135 (SD NY 1991), Stratton Oakmont Inc v Prodigy Services Co 23 Media L Rep (BNA) 1794 (NYSC 1995).

[13] See Mansfield J in Rana v Google Australia Pty Ltd [2013] FCA 60 at [51], in which his Honour held that '[t]he complainant must establish in one way or another an acceptance by the respondent of some responsibility for the continued publication of that statement.'

[14] [2006] EWHC 407, [2007] 1 WLR 1243.

[15] See Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765, [2011] 1 WLR 1743 and the approval of Eady J's statement in Bunt by the Court of Appeal in Tamiz v Google Inc. [2013] EWCA Civ 68, [2013] 1 WLR 2151, [23] (Richards LJ, Dyson MR and Sullivan LJ agreeing).

[16] [2006] EWHC 407, [2007] 1 WLR 1243, 1248 [15].

[18] [2013] EWCA Civ 68, [2013] 1 WLR 2151, [23] (Richards LJ, Dyson MR and Sullivan LJ agreeing).

[20] [2013] HKCFA 47.

[21] A communication by a 'bill poster' may raise different considerations from a communication by a graffiti artist.

[22] [1937] 1 KB 818, 837.

[23] [2014] NZCA 461.

[25] [2012] VSC 533.

[27] The appeal in Tamiz was yet to be heard.

[30] Blever v Google Inc [2014] NSWSC 897, [83]. See also Rana v Google Australia Pty Ltd [2013] FCA 60.

[31] Murray v Wishart [2014] NZCA 461

[32] Tamiz v Google Inc [2013] EWCA Civ 68, [2013] 1 WLR 2151, [23] (Richards LJ, Dyson MR and Sullivan LJ agreeing).

[34] A pleader may need to allege how automated functions controlled by software operate in order to demonstrate how the knowledge, control or ratification factors can be made out at trial.

[35] Paragraph 20 of the affidavit referred to comments that continued, as at 12 November 2014, to remain on the website including the comments that form the second publication.

[36] Conflicting inferences with equal degrees of probability lead to conjecture and an opportunity for prejudicial conclusions that may embarrass or delay the fair trial of the proceeding. See Bradshaw v McEwans Pty Ltd (27 April 1951, unreported), cited in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141; ACCC v Amcor Ltd [2000] FCA 17; (2000) 169 ALR 344, 361; Mutual Community General Insurance Pty Lt v Khatchmanian [2013] VSA 144.

[37] Compare Tamiz v Google Inc [2013] EWCA Civ 68, [2013] 1 WLR 2151.