Media companies in Australia can be held responsible for defamatory comments left on their social media pages by members of the public, the country’s High Court has 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 professor of law at the University of Sydney, said the ruling “may mean anyone who runs a social media page can theoretically be sued over disparaging comments posted by readers or random group members — even if you aren’t aware of the comment.”
The ruling (which can be read in full here) is part of a defamation lawsuit brought against a number of outlets, including The Australian and Sky News, by Australia’s Dylan Voller. Shocking photographs of Voller being restrained at a youth detention center went viral in 2016 and led to an inquest into the conditions at such centers. Many news outlets covered the story and shared their articles on Facebook. In 2017, Voller sued three of these companies, arguing that comments left on their Facebook pages in reaction to these stories were defamatory, and that, by inviting these comments, the news outlets were legally their publishers.
It’s this second point which has proved particularly contentious, but a number of courts have found 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 by Australia’s High Court, seems to settle this particular element of the case, establishing that media companies are indeed the “publishers” of third-party Facebook comments and can be held legally responsible for their content. However, Voller still has to prove that the comments themselves were defamatory, while media companies can now marshal new defenses under defamation law.
Although Voller’s case is not yet over, Australian media companies are extremely worried by the wider implications of the High Court’s ruling. A spokesperson for Nine, one of the companies sued by Voller, said the decision “will have ramifications for what we can post on social media in the future.” Michael Miller, executive chairman at News Corp Australia, another firm targeted in the case, said the finding “highlights the need for urgent legislative reform” that will “bring Australian law into line with comparable western democracies.”
As Miller noted in comments reported by MediaWeek: “The decision by the High Court in the Voller case is significant for anyone who maintains a public social media page by finding they can be liable for comments posted by others on that page even when they are unaware of those comments.”
The ruling may even effect individuals posting on personal social media pages, said Rolph in comments to The Sydney Morning Herald. The decision “obviously has implications for ordinary users of social media platforms, because they can be held liable as publishers where they post material to their Facebook pages and encourage engagement,” he noted.
Media companies argued that they could not be the publishers of Facebook comments as they were unaware of their content. “To be a publisher, one must intend to communicate the matter complained of,” they wrote in a submission from February 2021. They also noted that at the time of the lawsuit, Facebook didn’t allow publishers to turn off comments underneath posts at all (the company only added this feature in March this year).
The High Court responded by noting that when media companies created and maintained public Facebook pages they were showing their “intentional participation in the process” of sharing third-party comments. “[T]he appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality,” wrote two of the justices, Stephen Gageler and Michelle Gordon, in a judgement. “Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.”
A big question is what effect this ruling will have on the operations of media companies in other parts of the world. Thanks to the internet’s global reach, rulings in one nation can quickly have a knock-on effect internationally, and in the US, there are already huge debates about whether websites should be held liable for what users post (arguments which often revolve around the all-important Section 230 of the Communications Decency Act).
It’s important also that Australia is often seen as a test bed for online regulation, able to enact sweeping changes that have a big effect on how companies operate online. Earlier this year, for example, the country’s competition watchdog forced tech companies to pay Australian media companies to use their content, leading Facebook to briefly block all Australian users from sharing news articles on the site. In this particular case, the law was later changed and old functionality resumed, but it demonstrates how quickly what we think of as the normal operating standards of the internet can be altered.
With this High Court ruling, comment sections in Australia may simply be seen as too costly to moderate and so turned off for good. However, recent changes to defamation law in the country, which came into effect in some states on July 1st, have raised the barrier for defamation suits, and could potentially act as a counterweight to the decision.