In a 5-2 majority decision likely to be significant to anyone in Australia with a public social media page, Australia’s High Court upheld a Court of Appeal decision this month that three media entities — Nine, News Corp Australia, and the Australian News Channel — can be held liable for allegedly defamatory third-party comments posted on their Facebook pages, even though they were not aware the comments had been made.
The Wall Street Journal reported: “Now that the High Court has established that the media outlets are publishers, the case will return to the NSW (New South Wales) Supreme Court for a trial on the remaining issues, including whether the comments in fact defamed Mr. Voller and if any defences apply. The media outlets may still be able to raise a number of defences at the eventual trial, including the defence of innocent dissemination.”
Michael Miller, executive chairman of News Corp Australia, told INMA: “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. This highlights the need for urgent legislative reform, and I call on Australia’s attorneys general to address this anomaly and bring Australian law into line with comparable Western democracies.”
According to The Guardian, a spokesman for Nine said “it recognised the decision and hoped the second stage of defamation law reform could address the ‘consequences … for publishers. We are obviously disappointed with the outcome of that decision, as it will have ramifications for what we can post on social media in the future. We also note the positive steps which the likes of Facebook have taken since the Voller case first started, which now allow publishers to switch off comments on stories.”
In the words of one Australian INMA member we spoke with: “Realistically, changes we seek in the second tranche of defamation law reform in Australia, while they have some momentum, will take time. So, in the near term, all news organisations and others will live by the High Court ruling and take extreme care with their Facebook pages — and especially comments. It may mean more sites turn off comments, which … will harm them in terms of audience engagement, so there are risks and rewards to be balanced.”
Facts of the case
The case began in 2016 when Dylan Voller, a juvenile detainee, was pictured in a story by the ABC about abuse of young prisoners in the Australian criminal justice system, which led to a royal commission. Third-party comments accused him of crimes unrelated to his incarceration. His lawyers said the comments caused him extreme emotional and mental distress, according to The Guardian. Voller sued the media companies in 2017. According to Gizmodo, Voller never asked for the comments to be taken down, something previously required for the news outlets to be held criminally liable.
Media companies argued that “to be a publisher, they would have needed to know of their readers’ allegations and intentions to express them,” reported the BBC. That argument was rejected by the Supreme Court of New South Wales in 2019, after which the news groups appealed to the High Court of Australia, which upheld that decision, it said.
In a May 2021 appeal, the media companies argued they should not be liable because they had neither “knowledge” nor “control” over comments on Facebook posts and had not “intentionally lent assistance” to the publication of defamatory material, The Guardian reported, adding the appeal was “dismissed with costs.” Facebook did not allow comments to be disabled on posts until March 2021. Disabling comments, while protecting against defamation allegations, would make it more difficult to promote articles and earn advertising revenue, WSJ noted. The ruling could also have a chilling effect on public-interest journalism and is likely to discourage Australian media companies from posting stories to social media and to lead to them banning comments on more posts, it said.
“The Court of Appeal said media outlets were legally responsible as publishers of Facebook comments ‘from the outset’ because they ‘encouraged and facilitated’ the comments by having Facebook pages. The court said it was immaterial that they deleted the comments after becoming aware of them,” The Sydney Morning Herald said.
The Guardian reported the High Court’s majority found that “merely facilitating and encouraging comments amounted to ‘participation’ in the communication of defamatory material, even if the original poster was not aware of the content of later comments.”
In response to the decision, Voller’s solicitors said in a statement reported in The Guardian: “It is commonly known that media companies encourage increased engagement on their posts so that their content is seen by a larger audience. This helps in attracting advertising revenue. With this strong commercial imperative driving them, there was no doubt that the media companies lent their assistance to the publication of third-party comments. They did everything they could to encourage the same and it is disingenuous of them to say they played no role in publication of the same.”
The solicitors added the decision would require “media companies with huge resources to monitor public comments in circumstances where they know there is a strong likelihood of an individual being defamed.”
No constitutional protection for free speech in Australia
Free speech is not protected by the Australian constitution. The country’s defamation laws place the burden of proof on defendants to prove that the allegations are false, rather than requiring plaintiffs to prove that they are true. WSJ pointed out that “Australia is already considered to be a defamation hot spot because of plaintiff-friendly laws that make it easier to win defamation lawsuits compared with other jurisdictions.”
One INMA member told us: “It is important to understand that both the U.S. and the UK operate in a very strong free speech environment that is enshrined in the nations’ guiding documents, which links the ability to sue for defamation. Australia has no such protection,” the member said. “This makes defamation cases much more winnable in Australia and much more attractive for litigants and lawyers to pursue. Rather complicating the issue is that each state has its own defamation laws.”
According to Sydney Morning-Herald: “It has long been the case in [Australian] defamation law that a person can become liable for the continued publication of defamatory comments by unauthorised third parties on physical walls or noticeboards controlled by them once they become aware of the comments and fail to remove them.”
At this time in the United States, social media companies are exempted from legal liability via Section 230 of the Communications Decency Act, although some politicians are calling for change.
“Content moderation is and has always been a complex and nuanced problem,” said David Chavern, president and CEO of the U.S. and Canada publishers’ association, News Media Alliance, in a 2020 U.S. Department of Justice workshop on Section 230.
Speaking to INMA this week, Chavern added these thoughts: “If there is a connection between Voller and Section 230, it is that societies around the world are wrestling with (1) what actually happens on social media and (2) who is responsible. It is a new medium with hard questions. The real debate in Australia will be when they undertake legislative reform in reaction to Voller.”
An Australian media executive told INMA: “All this is a process of negotiating with a collection of politicians from across state borders who are not all of the view that laws should be changed to favour news organisations. While some are very attuned for the need to change, others are less enthusiastic. Over many years, Australian politicians have notably sued for defamation and many have little sympathy for the need for reform because they like having the media ‘on notice,’ so to speak.”
Recent changes: state by state
Recent changes in several jurisdictions (New South Wales, South Australia, Victoria, Queensland, and the Australian Capital Territory) will require a plaintiff to give at least two weeks’ notice of their intention to take action, the Australia Broadcasting Corp. (ABC) reported.
“In the first tranche of changes, we were able to have enshrined a ‘statute of limitations’ … that meant people could not sue for defamation many years after the material was first published. This was one step in bringing our laws into line with UK defamation law changes,” one publisher told INMA.
SMH said: “Under the new laws, a serious harm threshold must be met for a person to bring a defamation action, and a prospective plaintiff must send a ‘concerns notice’ before launching proceedings. This gives a publisher an opportunity to make amends, potentially heading off any trial.”
“Australia’s media companies, under the banner of Australia’s Right to Know, have been campaigning with state Attorneys General to bring the various defamation laws across the country into the 21st Century,” one source told INMA. “We have achieved some success. But the work needed to address the issue raised by this case is in the second tranche of proposed reforms and the media broadly … are deeply involved in this process.”