Australia’s High Court ruled on Wednesday that media companies are liable for defamatory comments posted to their Facebook pages by readers, a decision that will further complicate the worldwide debate about if social media platforms should have the same legal obligations as publishers.
More specifically, the High Court dismissed an appeal against a previous ruling that held major news outlets like the Sydney Morning Herald (SMH), the Australian, and Sky News responsible for defamatory Facebook comments left by readers of their coverage about Dylan Voller, a young detainee whose case was concisely summarized at Legalwise last week:
Voller found his way into the public eye after his mistreatment in a Northern Territory detention centre was featured on the ABC’s Four Corners. Voller participated in several interviews outlining the mistreatment. In doing so he became an advocate for youth detention reform. Shortly after the story aired the prime minister announced a federal investigation into youths’ treatment within detention centers. Different news outlets began to report on the issue, amplifying the unravelling controversy. In this process of reporting Facebook accounts owned and managed by Fairfax, Nationwide and Sky posted a video of Voller in a compromising state within the detention center.
Facebook users began to comment on this video. Some expressed support for Voller’s plea to reform Juvenile detention, a hard conclusion not to arrive at considering the confronting nature of the subject matter. However, others began to accuse Voller of an array of violent crimes, perhaps implicitly attempting to justify Voller’s treatment within the detention center.
Voller then sued Fairfax, Nationwide and Sky on the basis that they were responsible for the defamatory comments made about him, as they are owners and managers of the page on which the comments were publicized. This equates to arguing that the news outlets have an active responsibility to monitor and censor comments that are damaging or inappropriate that are present on their social media accounts.
The above-mentioned “video of Voller in a compromising state” showed him suffering various humiliations at the hands of detention center staff, including being forcibly stripped naked and restrained when he was 13 and 14 years old. One of the most haunting images showed Voller strapped to a wheelchair and wearing a spit hood.
Voller filed the lawsuit that prompted Wednesday’s ruling in 2019, naming as defendants not the individuals who made allegedly defamatory remarks about him in the comments section of social media postings, but the big media corporations that owned those Facebook pages.
His suit, which won a favorable judgment from the Supreme Court of New South Wales, held that the media companies were liable as the “publishers” of their reader comments. The court ruled that digital media should follow the same rules as print media, inverting the “Section 230” standards established for online media in the United States that have grown controversial in recent years.
“The acts of the (media companies) in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments,” New South Wales Supreme Court Justice Stephen Rothman said in the ruling upheld by the High Court on Wednesday.
Voller’s lawyers argued that “any degree of participation in that process of communication, however minor, makes the participant a publisher,” and contended major media organizations with “huge resources” should be expected to monitor everything posted by readers in their forums, especially when “they know there is a strong likelihood of an individual being defamed.”
Concurring justices in the 5-2 High Court decision agreed with this reasoning, saying the efforts of big media companies to “portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality.”
“Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences,” the majority wrote.
Supporters of Voller’s complaint will be encouraged that anonymous forum trolls can no longer use the anonymity of comments forums to make defamatory comments, but defendants in the Voller suit promptly began hinting they might follow the path of least resistance by shutting down their forums altogether, eliminating the “user engagement” that makes online media so distinctive.
“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,” a spokesperson for Australia’s Nine News said on Wednesday.
“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,” the spokesman added, referring to a capability that did not exist at the time of the stories that prompted Voller’s lawsuit – and implying Australian media organizations might be best advised to use that capability to shut down reader comments for good.
The problem, as noted by the SMH (a Nine publication) in its coverage of the High Court ruling, is that “engagement” is a major driver of content popularity, so major media organizations stand to lose millions of clicks – and the accompanying revenue – by shutting down interactive comment features to minimize their legal liability.
A likely outcome of this revised risk/reward calculation is that smaller publishers who monetize their content could be more likely to terminate reader feedback features, since they lack the “huge resources” to patrol their comments sections vigorously for legally actionable posts from their readers. The largest media companies, on the other hand, could afford to hire the monitors and censors needed to minimize their legal risk by offering “engagement.”
In the formative days of social media, at the height of the blogging era, it was feared that holding website owners liable for the comments made by readers could make it easy for targeted harassment campaigns to destroy websites: simply dispatch an army of paid or volunteer trolls to dump actionable posts into the comment section, send some anonymous tips to regulatory authorities, and watch the targeted site go down in flames.
Even without such malevolent targeted campaigns, smaller online authors worried they could not spare the time necessary to police their reader forums, which tended to explode in activity when a small site gained attention and links from larger outlets. Social media engagement remains a key factor in helping small online publishers grow. A publisher who does not engage with social media and encourage reader interaction is severely limiting its growth.
The U.S. debate over Section 230 revolves around the extraordinary powers social media companies have accumulated by claiming the privileges of both “publisher” and “platform” – publishers when they wish to censor their users, platforms when they want to escape liability for censorship. Australia’s experiment in holding publishers liable for the comments of their readers will be worth watching as America grapples with its own digital rights issues.