How can you protect
against defamatory comments on your Facebook page?
Everyone with a social media presence in Australia needs
to seriously think about dealing with defamatory comments
made on their platform or web page.
The reason? The ever-present risk of a defamation suit.
The recent decision of the High Court of Australia of
Fairfax Media Publications Pty Ltd v Voller, Nationwide News
Pty Limited v Voller, and Australian News Channel Pty Ltd v
Voller  HCA 27 (8 September 2021) highlights the
The media groups (Fairfax Media, Nationwide News, News
Channel) each maintained a public Facebook page. They
created and posted content for their news stories (a
headline, photo and summary) on their Facebook page with a
hyperlink to the full stories on their own website.
Media groups maintain public Facebook pages for sound
commercial reasons. They encourage users to “Like”, “Share”
and “Comment” on their Facebook page because they affect the
Facebook algorithm, increasing the profile of the page, its
popularity and readership, which in turn optimises
advertising revenue. They use Facebook because over 15
million Australians are Facebook users, which is a
significant segment of the population.
Dylan Voller sued the media groups for defamation,
claiming that he had been defamed in comments posted by
third parties, made on public posts on the media groups’
Facebook pages between December 2016 and February 2017.
Their subject was the mistreatment Dylan Voller suffered at
the Don Dale Youth Detention Centre in Darwin.
Facebook does not allow page administrators to turn off
“Comment” to block comments on public posts.
Facebook allows page administrators to “filter” comments
which contain “moderated words”. These are words which they
have submitted to Facebook. Comments containing these words
are ‘hidden’ from publication until they are moderated.
There is no ability to moderate other comments before
publication (except in a private Facebook Group).
The best the media groups can do is to moderate the
comments after publication and remove defamatory comments.
In Dylan Voller’s case, the defamatory comments were
displayed for only a short time before being removed by the
media group’s Facebook page administrator.
Were the media groups
publishers of defamatory comments?
The questions the High Court of Australia had to decide
was whether the posting of the comments was publication
which made the media group liable for defamation as a
To defame a person, the defamatory material must be
Two judges (Gageler J & Gordon J jointly) quoted with
approval Chief Judge Cardozo*:
“In the law of defamation, ‘publication’ is a term
of art … A defamatory writing is not published if it is
read by no one but the defamed. Published, it is,
however, as soon as read by anyone else.”
(Ostrowe v Lee (1931) 175 NE 505 *Court of Appeals
of the State of New York)
“Publication of matter by means of the Internet is
accordingly complete where the matter is accessed by a
third party in a comprehensible form.” [p 61, judgment]
They then considered – Who is a publisher? They
quoted with approval a decision by the Hong Kong Court of
Final Appeal which found that an internet service provider
could be sued for defamation as a publisher:
“a person is a publisher of defamatory matter if …
the person “intentionally assisted in the process” of
communicating the matter containing content conveying
the defamatory imputation to a third party”
(Oriental Press Group Ltd v Fevaworks Solutions Ltd
(2013) 16 HKCFAR 366)
They observed that the media groups knew of the legal
risk of being a publisher by using Facebook as a platform,
and chose to do so for commercial benefit:
“The [media groups] chose to operate public
Facebook pages in order to engage commercially with that
significant segment of the population … [their] attempt
to portray themselves as passive and unwitting victims
of Facebook's functionality has an air of unreality.
Having taken action to secure the commercial benefit of
the Facebook functionality, the[y] bear the legal
consequences.” [p 100 & 102, judgment]
They concluded that the media groups were publishers:
“Each [media group] became a publisher of each
comment posted on its public Facebook page by a Facebook
user as and when that comment was accessed in a
comprehensible form by another Facebook user. … [each
media group was a publisher] by reason of its
intentional participation in the process … having
contracted with Facebook for the creation and ongoing
provision of its public Facebook page, posting content
on the page the effect of which was automatically to
give Facebook users the option … to “Comment”.” [p 98,
Three other judges (Kiefel CJ, Keane J & Gleeson J
jointly), also relying on the High Court decisions of
Webb v Bloch (1928) 41 CLR 331 and Trkulja v Google
LLC  HCA 25, took the same view:
“the acts of the [media groups] in facilitating,
encouraging and thereby assisting the posting of
comments by the third-party Facebook users rendered them
publishers of those comments.” [p 55, judgment]
The High Court of Australia (by a 5-2 majority) decided
that that the media groups were publishers, and therefore
liable for defamatory comments on their Facebook pages.
The law of defamation applies to everyone with a website,
a Facebook or other social media page. They can be
individuals, businesses, social groups, community groups,
P&Cs, strata committees or neighbourhood associations. They
can be private or public Facebook groups.
In Voller, the High Court of Australia has held that:
- Liability for defamation arises the instant a
comment is posted on social media; and
- Everyone who maintains a social media page or
website is liable in defamation not only for their
posts, but for comments on their posts
The media groups will defend the claim using the defence
of innocent dissemination. They will point out that
they monitored the page and removed defamatory comments as
soon as they were posted. This defence will be tested when
the defamation trial takes place.
Can you protect against
defamatory comments (such as by trolls)?
Facebook offers all users customised settings to restrict
- To block posts (and comments) by nominated persons
- To filter comments which use a ‘moderated word’
- To hide or delete comments, after they are posted
Facebook offers these additional settings to closed
Facebook Groups only:
- To ‘block’ comments by turning off “Comment”
- To ‘filter’ comments (before they are published) by
choosing the setting “All Group Posts Must Be Approved
By an Admin or a Moderator”
There is a strong case to be made that the privacy
settings available to Facebook Groups that comments “Must Be
Approved By an Admin or a Moderator” (before being posted)
should be available to all Facebook users.
But until Facebook offers settings to moderate or block
comments, Facebook users must effectively manage and
mitigate defamatory comments. Michael Field provides these
tips from a brand management perspective:
What are 11 effective
ways for brands to manage social media comments?
Marketing Commentary by Michael Field from EvettField
Brands and their marketing teams must have adequate
systems in place to monitor and respond in real time to
social media comments effectively.
These are 11 effective ways a brand can manage social
- Develop ‘Membership and Participation Guidelines’
as an integral part of the organisation’s risk register
and risk mitigation plan for brand and reputation
- Actively monitor all social media channels including
owned, earned and paid media.
- Empower the communications and marketing teams,
including third party contractors with the relevant
access, delegations of authority, escalation points and
tools to act immediately on any posts or comments that
are in breach of the ‘Membership and Participation
- Monitor all first points of customer contact such
as: customer complaint logs, chatbot and chatbox
comments and conversations, inbound emails, Net Promoter
Score (NPS) and review sites etc.
- Implement a customer satisfaction rating system such
as Net Promoter Score to identify any emerging issues as
early as possible and look for trends or common areas of
customer or community concerns.
- Actively monitor traditional media such as print,
radio and television for any mentions of your brand
(positive and negative) using a third-party monitoring
- Use online alert tools to track online mentions of
- Deploy social listening tools to monitor the brand's
social media channels for any customer feedback and
direct mentions or discussions regarding specific
keywords, topics, competitors, or industries.
- Take screenshots and document formal diary notes of
any conversations, communications or interactions
related to comments or posts that are flagged in the
moderation or monitoring of any online presence
including social media pages.
- Respond courteously and quickly and aim to move the
conversation offline as quickly as possible by inviting
the customer to connect with a company representative
who has the authority to respond to, and remedy the
- Actively encourage satisfied customers to write
reviews reflecting their positive experiences. This can
help present a more balanced approach if there are only
a small number of negative comments.