Instead, everyone who has a Facebook page is now considered to be the publisher of defamatory comments that are left on those pages without their knowledge or consent.
That means the High Court has exposed individuals and community groups with Facebook pages to an unknown potential liability for damage inflicted by online trolls.
This defies common sense, runs counter to the goal of cleaning up social media and cannot be allowed to stand. It is an affront to the principle that everyone is responsible for their own actions – not those of others.
State attorneys-general can expect to be deluged with demands for this decision to be reversed so everyone with a Facebook page is only answerable for material they intended to publish.
The targets of abuse on Facebook now have a choice: they can track down the real author of defamatory comments or they can use the Voller precedent and sue a well-insured entity that had no idea third parties had posted defamatory comments on their Facebook pages.
The High Court’s ruling, which is based on precedents going back to the 19 century, exposes the fact that this aspect of the law of defamation is no longer fit for purpose.
Defamation lawyer Anne Flahvin of Baker McKenzie has made the point that the High Court’s ruling is also at odds with a decision of the New Zealand Court of Appeal.
The New Zealand court has determined that the administrator of a Facebook page cannot be held liable for the comments of third parties if the administrator had no actual knowledge of the comments.
The real issue at the heart of the Voller case concerns this young man’s quest to find someone to sue after he was trolled in comments by third parties that had been left on Facebook pages operated by the media.
Voller came to national prominence when he featured in a 2016 Four Corners program about the detention and mistreatment of Aborigines at the Don Dale Youth Detention Centre in the Northern Territory.
In April, NSW Attorney-General-General Mark Speakman issued a discussion paper outlining a way of enabling people like Voller to track down the trolls he should be pursuing over those comments.
Speakman favoured a British provision that gives website operators a “safe harbour” from defamation if they can show they did not post the defamatory material and they have enough information about the identity of the wrongdoer to enable a complainant to sue.
That suggestion makes sense. But after the Voller case it should be accompanied by a new provision making it clear that the act of publishing requires an intention.
The alternative will lead to truly ludicrous outcomes where publishers will be called upon to defend material they did not write, did not post online and knew nothing about.
Shifting liability away from the real wrongdoers is a threat to everyone with a Facebook page and will do nothing to clean up social media.
Chris Merritt is vice-president of the Rule of Law Institute of Australia.
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The most objectionable aspect of the High Court’s decision in the Dylan Voller defamation case is that it undermines the law’s ability to hold online trolls to account.