Media outlets lose defamation appeal over liability for readers’ Facebook comments

The Court of Appeal has stood by a contentious Supreme Court decision that media outlets are ‘publishers’ of reader comments on Facebook, and are therefore liable to be sued if those comments are defamatory.

The Sydney Morning Herald, The Australian and Sky News were appealing the landmark ruling made last June by Justice Stephen Rothman in a defamation case brought against the publications by former Don Dale youth detainee Dylan Voller. But this morning, New South Wales’ highest court dismissed the appeal, and ordered the publications to pay for Voller’s legal costs.

The significance of Justice Rothman’s decision last year led to Seven West Media, Daily Mail Australia and Bauer Media – which were not part of the case – to also attempt to intervene in the appeal to have the decision overturned on a different legal basis. The Court of Appeal rejected that motion because the issue the three publishers’ raised was not part of the original proceedings.

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

It also ruled that Justice Rothman’s decision was correct because the publications “encourage and facilitate the making” of Facebook comments.

“By the terms of their arrangements with Facebook, and by their invitations to members of the public to comment on their news items, the applicants accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments,” said this morning’s judgment.

“They did so from the time they made their Facebook pages available to those who wished to comment, and by actively inviting comment. It was the applicants who provided the vehicle for publication to those who availed themselves of it.”

Comments cannot be turned off on public Facebook pages, but can be hidden or deleted once they are published by a Facebook user. Justice Rothman suggested in last year’s decision that publications could effectively stop comments from being posted by filtering ‘common words’.

But this would not prevent misspelt comments, comments including non-filtered words, and comments including only an image from being published. The publications also argued that, in fact, the filter would not actually stop comments from being posted, but only stop those who were not Facebook friends with the commenter from seeing the comment.

“Perhaps with a degree of hyperbole, they submitted that they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author,” Justice John Basten, one of three Court of Appeal judges who made today’s ruling, said of the publications’ argument.

However, the judge continued, the publications “facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory”.

The publications that instigated the appeal issued a joint statement, calling for urgent defamation law reform and flagging that they may seek special leave to appeal to the High Court.

“The appeal court has shown that Australian defamation law is completely out of step with the realities of publishing in the digital age, and how Australians consume news and information,” the outlets said.

“The decision fails to acknowledge that it is Facebook that controls its platform, including that Facebook gives media companies no ability to turn off comments on their pages. It is Facebook that must be held responsible for content posted by its users, not media companies.

“Today’s decision means the media cannot share any story via Facebook without fear of being sued for comments which they did not publish and have no control over.

“It also creates the extraordinary situation where every public Facebook page – whether it be held by politicians, businesses or courts – is now liable for third party comments on those pages.”

The appeal stemmed from Voller’s case against a number of outlets – including The Sydney Morning Herald, The Australian, Sky News, The Centralian Advocate, and The Bolt Report – for 10 Facebook comments made by readers on the publications’ posts.

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 the companies’ Facebook pages. Readers made comments on the Facebook posts, and Voller claimed some of these comments defamed him, and the outlets ‘published’ them.

The Supreme Court’s Justice Rothman, and now Justices Basten, Meagher, and Simpson in the Court of Appeal, agreed.

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.


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