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High Court upholds that media outlets are ‘publishers’ of comments on Facebook posts

The High Court of Australia has ruled media outlets that run Facebook pages are the “publishers” of third-party comments on the platform, dismissing a second round of appeals by Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channel Pty Ltd.

Outlets including The Sydney Morning Herald, The Australian, Sky News, The Centralian Advocate, and The Bolt Report are currently fighting a defamation case originally brought by Dylan Voller before the New South Wales Supreme Court.

In 2016, Voller featured in an ABC Four Corners episode that exposed the treatment of young people in Don Dale, a juvenile detention centre. He was shown wearing a spit hood in CCTV footage used in the program.

The likes of The Sydney Morning Herald, The Australian, and Sky News ran stories about Voller, which were then shared on respective Facebook pages for the publications. Readers made comments on the Facebook posts. Voller’s claim is that some of these comments defamed him and that the outlets ‘published’ them.

As part of the case, Voller is attempting to sue the media companies over alleged defamatory comments on their Facebook pages.

In June of 2019, Voller won the first round of his case, when Justice Stephen Rothman ruled that media outlets can be sued for readers’ Facebook comments. At the time, News Corp called the decision “ridiculous”.

The outlets first appealed the decision but lost the appeal in a June 2020 ruling by the Supreme Court that confirmed Justice Rothman’s decision was correct because the publications “encourage and facilitate the making” of Facebook comments.

Following that ruling, the publications issued a joint statement, calling for urgent defamation law reform, and then sought special leave to appeal the decision to the High Court.

Dylan Voller on an episode of ABC’s Q&A

The High Court today dismissed that second appeal, ruling that media outlets are indeed “publishers” of the third-party Facebook comments.

It considered whether the appellants were liable for the publication of allegedly defamatory “comments” that were posted by third-party Facebook users in response to content they published about Voller.

The High Court’s Chief Justice Susan Kiefel and Justices Patrick Keane and Jacqueline Gleeson found that the outlets were the publishers of third-party Facebook user comments after the majority of the court held that the outlets were facilitating and encouraging the “relevant communication”.

The majority of the court rejected the argument that for a person to be a publisher, “they must know of the relevant defamatory matter and indeed to convey it”.

Through the creation of a public Facebook page and the posting of content on that page, the outlets therefore facilitated, encouraged, and thereby assisted the publication of comments from third-party Facebook users and were therefore “publishers” of said comments.

The ongoing court case is the first-of-its-kind – no previous defamation cases have dealt with comments on a public Facebook page. The court is yet to rule on the other issues at play, including whether the readers’ comments are actually defamatory.

The case will now return to the Supreme Court, where media companies will have the opportunity to mount other defences against Voller’s defamation claims.

In a statement published by the ABC, Voller’s lawyers welcomed the decision and said Voller felt vindicated by the outcome.

“This is a historic step forward in achieved justice for Dylan and also in protecting individuals, especially those who are in a vulnerable position, from being the subject of unmitigated social media mob attacks,” Voller’s legal team said in a statement.

“This decision put responsibility where it should be; on media companies with huge resources, to monitor public comments in circumstances where they know there is a strong likelihood of an individual being defamation.”

A spokesperson for Nine told Mumbrella: “Nine recognises the decision of the High Court which makes news businesses liable for any post made by the general public on their social media pages as the “publisher” of those comments.

“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 are hopeful that Stage 2 of the Review of the Model Defamation Provisions will take account of the High Court’s decision and the consequences of that for publishers.

“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 a statement, News Corp Australia executive chairman, Michael Miller, said: “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.”

This story has been updated from the original to include statements from Nine and News Corp.

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