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Written by Peter Carter

September 28, 2021

A retired NSW solicitor who chose to include an injury compensation claim with defamation proceedings he filed in the Federal Court over vile and abusive Facebook messages has paved the way for an additional legal remedy to deploy against the scourge of cyberbullying.

Robert Mulley received the first abusive message from Warren Hayes – a Facebook “friend” and apparently part of the same extended family – in January 2020.  The second message a month later – to his wife – labelled him a “paedophile” and her a “slut”.

Hayes threatened malevolence upon both recipients in both messages.

Mulley issued proceedings for defamation in relation only to the second message.

The claim came before Justice Michael Lee who noted that it was not one whose subject matter of itself brought it within the court’s jurisdiction.

He ordered a hearing on the separate issue of “whether the jurisdiction of the court had been properly invoked”.

Mulley in the meantime amended his claim to seek relief for personal injury damages for loss of consortium and for psychological injuries caused by the violent and offensive content, the sending of which was unlawful by operation s 474.17 of the Criminal Code Act (Cth).

That section prohibits the use of a “carriage service” to menace, harass or cause offence, the maximum penalty for which is 3 years imprisonment.

In the hearing of the separate issue, it was not in dispute that Facebook Messenger is a “carriage service” because it carries “communications by means of guided and/or unguided electromagnetic energy”.

Neither was it in issue that the message content was – when considered objectively from the point of view of a reasonable person – “menacing, harassing or offensive”.

His Honour reasoned – in relation to the carriage service injury claim – that the question remained open as to whether “the law of Australia recognises tortious liability for harm caused by unlawful acts directed against an applicant”.

He concluded Mulley’s carriage service injury claim – although “novel” – was arguable as “a common law action on the case” but then had to decide whether such a common law claim in reliance on a federal statute meant the Federal Court had “subject-matter jurisdiction” to determine it.

That answer depended – he noted – on whether “the rights, duties, or subject matter with which the controversy is concerned have their origin in or owe their existence to a law of the Commonwealth”.

He arrived at an affirmative answer to that question noting that even if that claim were to fail, there was “sufficient commonality” concerning the underlying facts and allegations in relation to the defamation action, to allow it to proceed in the Federal Court regardless.

On the other hand, the court would have had no jurisdiction to deal with a pure defamation claim, ie one that was unaccompanied by the separate claim relying on the breach of the federal carriage service law.

A final determination on the matter is likely to occur in early 2022.

Mulley v Hayes [2021] FCA 1111 Lee J, 13 September 2021

In further developments in the law of online abuse, the High Court found media organisations who posted content relating to news stories on their public Facebook pages, were liable for the publication of defamatory “comments” posted by third-party Facebook users in response.

By a 5:2 majority, the court held that – by facilitating and encouraging the third-party comment – the media organisations “participated” in the communication of the defamatory material and were thereby publishers of it.

The case arises out of comments posted on a media organisation’s website in 2016 concerning Dylan Voller, a youth detainee at the Alice Springs correctional center. Abusive and malevolent comments directed against Voller were posted to Fairfax Media’s Facebook page in response to the vision it had circulated.

Voller’s lawsuit against Fairfax resulted in the High Court’s ruling.

The High Court’s decision has implications for every person and organisation who allow comments to be posted to their social media account or to their website – they can be liable for defamation damages for derogatory comments that readers post up on the site.

The ruling overcomes the difficulty of identifying and locating trolls who are able to remain anonymous and who are unlikely to be able to
pay defamation damages. Probably in response to this ruling, Facebook has recently announced it will consider revealing the identity of people who post abusive and insulting comments.

Mr Voller’s case will now proceed to a determination in the NSW Supreme Court as to whether the published comments are defamatory and what damages are payable to the person who was the subject of the abusive and threatening comments.

Fairfax Media Publications Pty Ltd V Dylan Voller; Nationwide News Pty Limited V Dylan Voller; Australian News Channel Pty Ltd V Dylan Voller [2021] HCA 27 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ, 8 September 2021

Categories: defamation

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