Media Liable For Comments Posted On Their Facebook Pages: Australian High Court
Media Liable For Comments Posted On Their Facebook Pages: Australian High Court
BY TYLER DURDEN WEDNESDAY, SEP 08, 2021 - 10:20 PM Authored by Daniel Y. Teng via The Epoch Times (emphasis ours),
In a landmark decision, Australia’s apex judicial body, the High
Court, has dismissed an appeal from major media outlets claiming they were not
responsible for comments posted by readers or audience members on their social
media pages.
Experts
believe the judgement will have wider ramifications across not just media
outlets but businesses, government entities, and community organisations, who
will have to moderate comments even more stringently—or remove the option
altogether—to ensure defamatory comments are not publicised.
The case in question revolved around Dylan Voller, a former
inmate at the Don Dale Youth Detention Centre.
Voller sued the publishers of news outlets The Sydney Morning
Herald, The Australian, and Sky News Australia over comments posted by
individuals on their Facebook pages
in 2016 and 2017.
While
the news stories posted online were not defamatory, Voller’s
lawyers argued that the comments featured in the posts were defamatory and that
the media companies were legally liable.
An initial case was heard in 2019 by the Supreme Court of New
South Wales (NSW), who found it in Voller’s favour. In 2020, the NSW Court of
Appeal again ruled in Voller’s favour agreeing that the media outlets were the
“publishers.”
The media companies appealed once more to the High Court of
Australia—the final appellate body in the country—which found in favour of
Voller with a five to two majority.
The news
company’s lawyers had argued that they were not instrumental to—or were
participants in—the allegedly defamatory third-party comments.
However, the court disagreed and found that in creating a
Facebook page and posting content, the news outlets facilitated, encouraged,
and therefore, assisted in the publication of comments, meaning they should be
deemed the publishers.
The
High Court also found that it did not matter that the comments function in
Facebook could not be disabled at the time.
“The appellants’ attempt to portray themselves as passive and
unwitting victims of Facebook’s functionality has an air of unreality,”
Justices Stephen Gageler and Michelle Gordon said in the judgement (pdf) on
Sept. 8.
“Having taken action to secure the commercial benefit of the
Facebook functionality, the appellants bear the legal consequences,”
they added.
Dissenting Justice Simon Steward argued a more stringent
standard needed to be applied to who was deemed a “publisher,” saying it should
be established whether they “procured, provoked or conducted” the comments.
His concern was that it could make all Facebook page owners
liable for third-party comments.
A later court hearing at the Supreme Court of New South Wales
will determine whether the comments were defamatory in nature. The three media
outlets were ordered to pay the costs of the action.
David Rolph, professor of law and expert in defamation at
the University of Sydney, said the decision had wider implications across all
social media outlets—not just Facebook—including Twitter, Instagram, and even
websites with comments sections.
“Today’s
ruling may mean if you post something to a social media platform and
encourage or invite third party comments, you could be liable for any comments
that follow,” he wrote in The Conversation on Sept. 8.
“So, it could affect individuals, online community groups,
neighbourhood Facebook pages, the local P&C Facebook page, and so on,”
he added.
David Flint, emeritus professor of law and former chairman of
the Australian Broadcasting Authority, said the public debate would suffer as a
result, with media outlets potentially closing off comments to unknown readers.
“I think the analogy would be having a noticeboard on the wall
around your property and inviting people to make comments there as a community
facility—under this ruling, you would be liable for any defamatory comments,”
he told The Epoch Times in an email, noting as well that a similar case under
U.S. law would have been unsuccessful due to the “public figure” rule.
“This decision will only encourage more litigation, including
‘ambulance chasing.’ Solutions other than damages should be considered,” he
added.
“For example, if a media organisation is not aware of a
potentially defamatory comment, once its attention is drawn to this, it should
be sufficient if it takes this down and, if requested, hands over known contact
details with the person who posted the comment.”
Rolph
noted that under new defamation laws on July 1 in NSW, Queensland, Victoria,
South Australia, and the Australian Capital Territory, a “concerns notice” must
be sent before any legal action is taken. In Voller’s case, his lawyers sued
immediately.
A concerns notice is a formal letter informing an individual or
organisation of defamatory content and giving them an opportunity to make
amends.
Rolph also noted that a “serious harm threshold” existed, which
could protect individuals from lawsuits.
“This clause aims to rule out trivial defamation cases because
while it’s true anyone can cause serious harm to a person’s reputation on
social media, there is also a lot of banter and to-ing and fro-ing which might
be offensive but might not cause serious harm to a reputation,” he wrote.
Meanwhile, Nine media, who own The Sydney Morning Herald, hoped
national defamation law reform would take into account the High Court’s
decision.
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