July 23, 2019

Online Law

Mr Dylan Voller gained attention for his part as a victim in a four corners episode that documented the mistreatment of youth detainees in the Northern Territory. This story had varied media coverage ranging from sympathetic to critical.

It was not long before Facebook was littered with posts from media outlets discussing the issue.

As with most sensitive topics posted online, Facebook users engaged with the content provided by way of comments on these posts. Predictively, amongst the cyber-chatter were multiple comments that were accusatory and critical of Mr Voller. To Mr Voller, these comments were defamatory and tarnished his reputation beyond repair.

Mr Voller commenced defamation proceedings against three media outlets who published content through Facebook coverage of the story and had their posts commented upon in a defamatory nature by the public. Those media outlets included Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australian News Channel.

ISSUES to be tried:

Justice Steven Rothman of the New South Wales Supreme Court was posed with one question to answer. That question was:

Whether the Plaintiff (Mr Voller) had established the publication element of the course of action of deformation against the Defendants in respect of each if the Facebook comments by third party use?

That question was answered in the affirmative.

WHY IS THIS relevant?

The decision by the News South Wales Supreme Court is particularly relevant when considering defamation that occurs online, particularly via Facebook and other social media channels.

The decision effectively holds to account a public Facebook page for the comments made by individual third party users within the page. The court found with respect to media companies being primary publishers that each of those publishers:

  1. Knew or could be expected easily to find out the content of the comments being made on their posts; and
  2. Were able to control that content, preventing publication of the defamatory comments if necessary.

Previously, a media outlet could potentially not be held responsible for the comments posted by their readers. From an online perspective the argument posted by media outlets was that it would be impractical to comb through tens of thousands of comments to weed out the defamatory ones. That is no longer the case.

The distinction made by the court when comparing ordinary web pages and publications to Facebook was that Facebook has a particularly unique mechanism of review. That is, on an individual Facebook page there is a capacity to ensure by use of privacy settings that only friends or others can add to a timeline or comments. For a public Facebook page an administrator is allowed to alter the publication of comments made. 

WHERE TO FROM HERE?

It is now clear that publication by a third party user on a public Facebook page can amount to defamation being sheeted home to the public page administrator. Not only do social media users have to ensure that their original post is not defamatory but also any potential comments replying to it.

Essentially this decision provides public Facebook page operators with an ultimatum: monitor Facebook comments prior to them appearing on each post or risk liability for defamatory content.

Should you have any questions please contact Trenton Schreurs