Media outlets found liable for readers’ Facebook comments in first round of landmark Dylan Voller defamation case

Dylan Voller, a former Don Dale youth detainee, has won the first round of a landmark defamation case against The Sydney Morning Herald, The Australian, Sky News, The Centralian Advocate, and The Bolt Report. The question asked in today’s hearing was whether these outlets legally ‘published’ allegedly defamatory comments made on their public Facebook pages. Justice Stephen Rothman answered with a definitive “yes”, and, in doing so, ruled that media outlets can be sued for readers’ Facebook comments.

News Corp denounced the “ridiculous” decision, calling for urgent defamation law reform and flagging its intention to appeal. A Sydney Morning Herald spokesperson also said it was “considering its options” given “the implications the ruling may have on the industry”.

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

“This ruling shows how far out of step Australia’s defamation laws are with other English-speaking democracies and highlights the urgent need for change,” News Corp said in its statement.

“It defies belief that media organisations are held responsible for comments made by other people on social media pages. It is ridiculous that the media company is held responsible while Facebook which gives us no ability to turn off comments on its platform bears no responsibility at all.

“News Corp Australia is carefully reviewing the judgment with a view to an appeal.”

Voller became publicly known when he was featured in an ABC Four Corners episode in 2016 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.

News articles were written about him by the defendant publications. Readers made comments on Facebook posts sharing those articles, on the publications’ public pages. Voller is claiming that some of these comments defamed him, and the outlets ‘published’ them (even though they didn’t write them). Justice Rothman has now ruled that publications do ‘publish’ reader comments on their public Facebook pages, and are therefore liable for them.

“[A public Facebook page] allows the publication of the Facebook page and comments by the administrator, but allows the administrator to forbid all comments by others,” he said.

He concluded that an administrator can also hide comments until they have been monitored and approved, and noted that “it is not the compiling of a comment that gives rise to damages in defamation; it is its publication”.

However, publications have hit back, noting that comments are posted before they can be moderated.

“This decision could have implications for any organisation with a social media platform open for public comment – not just media organisations. The costs of moderating all content posted by users 100% of the time are likely to be prohibitive for many organisations,” said Ernst & Young digital law leader, Frith  Tweedie.

This case is the first of its kind: no previous defamation cases have dealt with comments on a public Facebook page. Justice Rothman also distinguished a public Facebook page from Google or a website in his judgment, confirming that Google is an ‘index’ rather than a primary publisher and that you cannot “vet comments to prevent them from being published to the world” on a public website.

The result of today’s hearing means that the publications cannot claim the defence of ‘innocent dissemination’, and Voller’s defamation claim against them will continue.


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