Yesterday, the Supreme Court of New South Wales handed down its preliminary judgment in Dylan Voller’s defamation claim against Fairfax Media, Nationwide News and Sky News and it is a sign that the walls are finally closing in on media outlets regarding comments posted in reply to articles placed on the social media platforms.
Mr. Voller, the former Northern Territory youth detainee at the now notorious Don Dale Detention Centre, commenced action against the media giants as a result of comments left on the Facebook pages of the Sydney Morning Herald, the Australian, Sky News, The Bolt Report and the Centralian Advocate between July 2016 and June 2017.
The Court was being asked to consider whether, by allowing social media comments by third party-users to be placed on the outlet’s Facebook pages in response to articles, the element of “publication” in a claim of defamation was established. The answer by the Court was in the affirmative – that media organisations are liable for the postings that are made in the “comments section”, despite not being the author of those comments.
The media has, for a long time now, been held accountable for the publication of defamatory content within its articles, whether it be contained within their hard copy newspapers or on their websites. The law is well established that even if a person or organisation is not the author of defamatory statements, the media can find themselves responsible for the damages caused by such statements as a result of publishing them. However, for the first time in Australia, a Court was required to consider the particular instance of comments made in response to articles on the Facebook pages of media organisations.
The Court conceded that this was indeed an emerging area of law and that no defamation cases in Australia have dealt with comments on public Facebook pages. However, it believed that there is now enough precedent extracted from recent cases in Australia and throughout the world for it to find that the the media organisations are no longer a “mere conduit” of the comments.
Media organisation have long relied on the defence of “innocent dissemination”, that the publishing of comments made by third parties on Facebook pages is done unwittingly and without negligence. They argue that, through the complicated algorithms of Facebook, which encourage and elevate to prominence the “most popular” comments on posts, there is no real way of stopping the exposure to online readers of controversial statements made by the third party users. Media organisations also concede that the monitoring of all comments made on their articles each day would require significant resources and effort on their part.
However, the Court held that it is no longer satisfactory for media organisations to merely sit and attempt to monitor comments where possible, especially where those outlets are of significant size, with significant available resources.
The judgment has, of course, been slammed by media organisations as “ridiculous” and “out of step” with other English-speaking democracies. Some commentators have also stated that this decision goes further than any decision around the world holding intermediaries liable for defamation as publishers. Many are demanding that changes be made to legislation relating to defamation to ensure that this decision does not have the wide ranging effects that many see this will have.
This morning, the “comments section” still exist on the Facebook pages of all of the aforementioned media organizations. However, the real question is, for how long?
The defendants in this matter have indicated that they are reviewing the judgment with a view to an appeal.