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Australian Courts Expand Scope of Defamation Law in Social Media Context

By Andrew Lacey and Guy Lewis, McCabe Curwood

In two recent decisions, superior courts in Australia have pushed the boundaries of what constitutes participation in the publication of materials on social media for the purposes of defamation law.

In the case of Voller vs Nationwide News Pty Ltd [2019] NSWSC 766, the Supreme Court of New South Wales was tasked with determining, as a preliminary question in the proceedings, whether each of the three defendant media companies was liable for defamatory material in thirdparty comments posted under links to articles on their Facebook pages. The Court held that they were. In reaching this conclusion, the Court primarily pointed to the fact that each media organisation had the ability to ensure that every post by a commentator was hidden, until monitored and approved by an administrator. Each organisation also had the ability to monitor and delete third-party comments on their Facebook pages after they had been posted.

In the case of Bailey vs Bottrill (No 2) [2019] ACTSC 167, the Supreme Court of the Australian Capital Territory found that an individual had actively participated in the publication of defamatory material by sharing a link to a defamatory YouTube video on her personal Facebook page. As with the decision in Voller, the Court pointed to the control that the defendant had over the content on her Facebook page in coming to this conclusion.

These decisions have set a potentially dangerous precedent for the application of Australian defamation law. In short, the effect of the decisions is that by providing the forum for the publication of defamatory material, the owner of a public Facebook page will be a first or primary publisher and not an “innocent disseminator”. Not surprisingly, concerns have been raised in the mainstream media that these precedents may have a chilling effect on freedom of speech in the modern social media landscape.


Andrew Lacey

Andrew Lacey

GGI member firm
McCabe Curwood
Law Firm Services
Sydney, Australia
T: +61 2 9265 3214
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McCabe Curwood is a multi-disciplinary law firm. With a focus on technical excellence, McCabe Curwood provides astute and commercial legal solutions for its clients. By emphasising technical excellence and commitment to quality, McCabe Curwood offers commercially relevant legal solutions tailored to the current and future business objectives of its clients. McCabe Curwood distinguishes itself from other legal service providers by offering legal services that focus on the client’s needs.

Andrew Lacey is the managing principal of McCabe Curwood. He also heads McCabe Curwoods’ Litigation and Dispute Resolution Group. He acts for numerous medium to large Australian and international businesses across a variety of industries, including manufacturing, property, insurance, and finance.
Guy Lewis

Guy Lewis

GGI member firm
McCabe Curwood
Law Firm Services
Sydney, Australia
T: +61 2 9265 3214
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W: www.mccabecurwood.com.au

Guy Lewis is a lawyer in the Litigation and Dispute Resolution Group at McCabe Curwood. He has experience in advising on disputes in a range of issues across multiple jurisdictions, including contractual disputes, directors’ duties, succession law, consumer law, real property, and insolvency.


Published: Litigation & Dispute Resolution Newsletter, No. 11, Autumn 2019 l Photo: Farknot Architect - stock.adobe.com

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