La Suprema corte australiana ha affermato che l’editore di giornali è (cor-)responsabile per diffamazione circa il post diffamtorio dei lettori, pubblicati nella sua pagina Facebook come commento ad articolo giornalistico. In altre parole l’editore, dando visibilità ai post, ne diventa <publisher> .
Si tratta di Fairfax Media Publications Pty Ltd v Voller  HCA 27, Nationwide News Pty Limited v Voller , Australian News Channel Pty Ltd v Voller, 8 Sep 2021, Case Number: S236/2020 – S237/2020 – S238/2020.
La principale difesa degli editori consisteva (non soprrendentemente , dato l’innegabile loro contributo materiale) , nella mancanza di elemento soggettivo (consapevoleza della lesività): The appellants now contend that the common law requires that the publication of defamatory matter be intentional. It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words. This is said to follow from what was said by Isaacs J in Webb v Bloch and to accord with the holding in Trkulja v Google LLC, that Google’s intentional participation in the communication of the defamatory matter supported a finding of publication , § 18.
Secondo la Suprema Corte , però, tale elemento non è richiesto: The liability of a person as a publisher “depends upon mere communication of the defamatory matter to a third person”, Dixon J said in Lee v Wilson & Mackinnon. No question as to the knowledge or intention of the publisher arises. His Honour said “[t]he communication may be quite unintentional, and the publisher may be unaware of the defamatory matter”, but the person communicating the defamatory matter will nevertheless be liable. The exception identified by his Honour was the case of certain booksellers, news vendors and messengers, to which reference will later be made, § 28.
E poi: The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments, Concl. al § 55.
I giudici Gageler e Gordon: 98 Each appellant 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 appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, 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 (in addition to “Like” or “Share”) to “Comment” on the content by posting a comment which (if not “filtered” so as to be automatically “hidden” if it contained “moderated words”) was automatically accessible in a comprehensible form by other Facebook users. 99 Not to the point of the appellants having been publishers is the fact that: the appellants had no control over the facility by which the Facebook service was provided to them and to Facebook users; the “Comment” function was a standard feature of the Facebook service which the appellants could not disable; it was not possible for them to delete all comments in advance; or they could have effectively “hidden” all comments posted by Facebook users only by applying an extremely long list of common words as “moderated words”, §§ 98-99.
Dalla predetta sintesi per il pubblico:
Fatto: The appellants are media companies which publish newspapers that circulate in New South Wales or operate television stations, or both. Each appellant maintained a public Facebook page on which they posted content relating to news stories and provided hyperlinks to those stories on their website. After posting content relating to particular news stories referring to Mr Voller, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were alleged to be defamatory of Mr Voller. Mr Voller brought proceedings against the appellants alleging that they were liable for defamation as the publishers of those comments.
Motivo: The High Court by majority dismissed the appeals and found that the appellants were the publishers of the third-party Facebook user comments. A majority of the Court held that the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, “participated” in the communication of the defamatory matter to a third person. The majority rejected the appellants’ argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. Each appellant, by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users. The appellants were therefore publishers of the third-party comments.
Da vedere se nel diritto USA il fatto sarebbe stato coperto dal safe harbour ex § 230 CDA.