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Australian judges rule that media companies can be sued for Facebook comments on posts


By Shawn Lim, Reporter, Asia Pacific

September 9, 2021 | 4 min read

Australia has ruled that media companies can be held liable for defamatory comments by readers on their social media posts.


Facebook introduced a new feature allowing comments to be disabled on posts in March

The ruling, which was reached after a five-two majority decision in the high court, came from the court case involving Dylan Voller, who was mistreated in the Northern Territory’s Don Dale youth detention center, with the case being investigated by a royal commission.

After Facebook users posted alleged defamatory comments about him on Fairfax and News Corp’s Facebook pages, Voller sued the media companies in 2017 for causing him extreme emotional and mental distress.

The media companies appealed in May 2021 and argued they should not be liable because they did not have “knowledge and control” over comments on Facebook posts, and had not “intentionally lent assistance” to the publication of defamatory material.

What is the judges’ ruling?

  • Chief justice Susan Kiefel and justices Patrick Keane and Jacqueline Gleeson ruled that defamation is judged by the standard of “strict liability”, which means no proof of fault or intention to damage a person’s reputation is required.

  • Justices Stephen Gageler and Michelle Gordon separately agreed that the media companies were publishers of the subsequent comments, adding that the advent of the internet and “many-to-many” publication did not warrant relaxing strict defamation laws.

  • In addition, Gageler and Gordon accused media companies of portraying themselves as “passive and unwitting victims of Facebook’s functionality”, which had an “air of unreality” because they had commercially benefited from using Facebook.

  • “There is no meaningful sense in which it could be concluded that Nationwide News intended to publish remarks that were not, in any imaginable sense, a ‘comment’ on the story. Defamatory remarks are like graffiti on a commercial noticeboard and neither satisfies the required intention for publication,” said Justice James Edelman, who ruled against Voller.

  • He added Voller should have to show a “connection to the subject matter posted by the media companies that [is] more than remote or tenuous”.

  • Justice Simon Steward, who also ruled against Voller, said posting to Facebook “starts an electronic conversation” that could spark “thousands of comments from around the world”, while the original poster has “no actual means of controlling the contents of such comment”.

  • He added that social media posters should be liable only where their posts “procured, provoked or conduced” later defamatory comments.

What does it mean for media companies?

  • While Facebook introduced a new feature allowing comments to be disabled on posts in March, the ruling might force Australian media companies to ban comments on more posts or discourage them from posting stories to social media.

  • “The decision 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. We need urgent legislative reform,” said Michael Miller, executive chairman of News Corp Australia.

  • “We recognized the decision and hoped the second stage of defamation law reform could address the ‘consequences for publishers’. 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,” Nine told The Guardian.

  • “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.”

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