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Media Houses held liable for defamatory comments posted on their Facebook pages – High Court

The High Court of Australia on Wednesday ruled that media companies are indeed the “publishers” of third-party Facebook comments and can be held legally responsible for their content. The Court found that, by proper use of the programming tools available to it, each company had the capacity to hide each comment until the comment was approved.

In a case filed by a young Australian Dylan Voller, who was mistreated at the Northern Territory’s Don Dale youth detention centre. His story was reported in a number of news outlets and there were defamatory comments posted by third parties who were responding to the story. Voller sued the media companies being Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd.

According to the judgement, “the media houses each maintain a public Facebook page on which they post content relating to news stories and provide hyperlinks to those stories on their website. They invite comment on the posted content from members of the public who are Facebook users. Comments which are made appear on the Facebook page and are available to be seen by other Facebook users.”

The Court said, where the owner of a Facebook page posts a story and such post procures defamatory comments, the Facebook page owner will have participated in their publication and therefore liable for such third party posts.

The Court said “The appellants’ posts are just the commencement of an electronic conversation. They are no more “instrumental” in making “available” future comments, than the first third‑party comment is “instrumental” to the subsequent appearance of all third-party comments then made in response to it.”

The Court made reference to the case of Pritchard Van Nes, where it was decided that “by reason of the inflammatory and defamatory nature of Ms Van Nes’ posts on her own Facebook page, and the particular circumstances of the case, it was found that she “ought to have anticipated” that further defamatory third‑party comments would then be made[326]. Ms Van Nes was thus the publisher of those comments.” The Court considered the balance between society’s interest in freedom of speech and the free exchange of information and ideas, on the one hand, as against, on the other hand, the maintenance of a person’s reputation in society.

This historic decision by the Australian Courts opens a new risk of liability, not only to media companies, but also to owners of Facebook accounts or social media accounts. Account owners can be held liable for comments made by third parties on their social media pages. Voller’s lawyer said this will protect vulnerable people “from being the subject of unmitigated social media mob attacks”.

With the increase in social media mob attacks and trolling, it is likely that other jurisdictions will follow this model. Social media users may need to ban comments on their pages or be more vigilant in moderating comments. In April, Facebook rolled out a new tool to give users more control over their News Feed by introducing an option that will allow users to decide on who can comment on their public posts and sort their News Feed.

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