Media companies in Australia can be held liable for defamatory comments left on their social media pages by members of the public, the country’s High Court ruled. The decision is part of a long-running defamation case that could have huge consequences for Australia’s media industry, forcing news sites to strictly moderate or remove comments on stories shared on Facebook, Twitter and elsewhere.
Writing in The conversation, David Rolph, a law professor at the University of Sydney, said the ruling “may mean that anyone who runs a social media page can theoretically be sued for derogatory comments posted by random readers or members of the group, even if you are not aware of the comment. “
The sentence (which can be read in its entirety here) is part of a defamation lawsuit brought against various outlets, including The australian and Sky News, by Dylan Voller from Australia. Shocking photographs of Voller immobilized in a juvenile detention center went viral in 2016 and led to an investigation in the conditions in such centers. Many media outlets covered the story and shared their articles on Facebook. In 2017, Voller sued three of these companies, arguing that the comments left on their Facebook pages in reaction to these stories were defamatory and that, by inviting these comments, the media were legally their publishers.
It is this second point that has been particularly contentious, but several courts have ruled in favor of Voller’s argument. These include the Supreme Court of New South Wales in 2019 and the New South Wales Court of Appeal in 2020. This latest ruling, a 5-2 decision of the High Court of Australia, appears to resolve this particular element of the case, establishing that media companies are in fact the “publishers” of third-party comments on Facebook and can be held legally liable for its content. However, Voller has yet to prove that the comments themselves were defamatory, while media outlets can now stage new defenses under the defamation law.
Although Voller’s case is not over yet, Australian media companies are extremely concerned about the broader implications of the High Court ruling. A spokesperson for Nine, one of the companies sued by Voller, said the decision “will have ramifications for what we may post on social media in the future.” Michael Miller, chief executive of News Corp Australia, another firm targeted in the case, said the finding “highlights the need for urgent legislative reform” that will “align Australian law with comparable Western democracies.”
As Miller pointed out in the comments reported by Mediaweek: “The High Court decision in the Voller case is important to anyone who maintains a public social media page upon discovering that they may be responsible for comments posted by other people on that page, even if they are unaware of those comments.”
The ruling may even affect people who post on personal social media pages, Rolph said in comments to The Sydney Morning Herald. The decision “obviously has implications for ordinary users of social media platforms, because they can be held responsible as publishers when they post material on their Facebook pages and encourage participation,” he said.
The media companies argued that they could not be the publishers of the Facebook comments because they were unaware of their content. “To be an editor, one must have the intention of communicating the matter that is complaining,” they wrote in a presentation of February 2021. They also noted that at the time of the lawsuit, Facebook did not allow publishers to turn off comments under posts at all (the company i just added this feature in March of this year).
The superior court answered noting that when media companies created and maintained public Facebook pages, they were showing their “intentional involvement in the process” of sharing third-party comments. “[T]appellants’ attempt to present themselves as passive and unwitting victims of Facebook functionality has an air of unreality, ”wrote two of the justices, Stephen Gageler and Michelle Gordon, in court. “Having taken steps to ensure the commercial benefit of Facebook’s functionality, the appellants bear the legal consequences.”
A big question is what effect this failure will have on the operations of media companies in other parts of the world. Thanks to the global reach of the internet, failures in one nation can quickly have a domino effect internationally, and in the US, there are already great debates about whether websites should be held accountable for what users post (arguments that often revolve around all – important article 230 of the Communications Decency Law).
It is also important that Australia is often seen as a test bed for online regulation, capable of enacting radical changes that have a huge effect on the way businesses operate online. Earlier this year, for example, the country’s competition watchdog forced tech companies to pay Australian media companies to use their content, prompting Facebook to briefly block all Australian users. so that they did not share news articles on the site. In this particular case, the law was later changed and the old functionality was resumed, but it demonstrates how quickly what we consider to be normal Internet operating standards can be altered.
With this High Court decision, the comment sections in Australia can simply be seen as too expensive to moderate and therefore disabled forever. Nevertheless, recent changes in deFlove law in the country, which took effect in some states on July 1, has raised the bar for defamation lawsuits and could act as a counterweight to the decision.