Media giants NineFax and News Corp have lost their High Court case seeking a "get-out-of-gaol-free" card in relation to defamatory material published on their social media pages. Dr Martin Hirst says there’s no surprise in the decision.
THE HIGH COURT has confirmed that intent to publish rather than intent to defame is the key ingredient in defamation proceedings, even if the defamatory material was authored by a third party beyond the publisher’s control and published on a social media platform.
The media companies – formally Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channel Pty Ltd – were appealing a decision of the NSW Court of Appeal that they were liable for any defamatory imputation in readers’ comments posted on Facebook.
The legal proceedings were sparked by a defamation action brought by Dylan Voller in response to reader comments posted on news stories by Fairfax, News Corp and Sky News. Voller is well known as the young Indigenous man at the centre of the notorious "spit hood" case in the Northern Territory juvenile detention system.
The abuse of Voller and other detained youth was exposed in July 2016 when the ABC’s Four Corners program aired whistleblower footage of Voller tied in a chair with a full canvas hood secured over his head.
The High Court case
The media companies sought to absolve themselves of responsibility for defamatory comments made about Voller by members of the public responding to their coverage of the spit hood story and subsequent reporting of Dylan Voller’s behaviour, movements and opinion.
The High Court case was around two issues:
- Does a publisher have to intend to communicate defamatory material?
- Is the creator of a social media page (such as Facebook) also the publisher of third-party comments posted without their knowledge or approval?
The act of publication is a central element in any defamation action as the publisher is deemed liable for defamatory material authored by another person.
In this case, the publishers argued that they could not (and should not) be held responsible for content authored by members of the public and posted to the publisher’s Facebook channel in response to news stories. Fairfax and Nationwide News proffered the defence that they were merely "innocent disseminators" of the defamatory material that they didn’t know about beforehand, therefore they could not be responsible for its publication.
The High Court rejected this argument and, instead, found that the media companies did hold liability for third-party commentary because they “facilitated and encouraged” third-party engagement with their content, with an intent that it be published — which literally means made available for the public to see.
The brief outline of the High Court’s reasoning is summarised in its media statement:
The majority rejected the appellants' argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. Each appellant, by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users. The appellants were therefore publishers of the third-party comments.
What does the decision mean?
In their appeal to the High Court, the publishers sought to shift responsibility from their shoulders onto Facebook and other social media platforms by claiming a defence of “innocent dissemination”. However, the issue of intent in defamation is clear. The question in defamation proceedings is never about intent to defame — but rather, intent to publish. The High Court found that the media companies had a clear intent to publish and that this is implicit in their public-facing social media pages.
The High Court has affirmed the long-held principle that the publisher is liable for defamatory imputations because of the act of publication and that this applies whether there was an intent for the material to be defamatory or not.
At the heart of this case is a simple economic question: Who should bear the cost of moderating comments on public Facebook pages?
This is a good question, but it’s not new. The issue has come up repeatedly in relation to “fake news”, particularly in light of what happened during the 2016 U.S. Presidential Election season. Physical moderation of comments on social media is a huge task that requires thousands of hours of human labour and it can’t always be left to algorithms that are still clumsy sledgehammer-type tools.
The news companies do employ administrators who are supposed to moderate comments; the problem is that comments will often be technically published before an administrator can effectively moderate them. It’s a catch-22 for news companies who crave engagement and need high numbers to secure advertising. At the same time, they are reluctant to cover the cost of having full-time and thorough comment moderation.
The news companies were surely aware of their liability in terms of the 'Defamation Act 2005' but tried to get out of it using a rather weak argument, akin to what I call the “Bart Simpson defence” of “I didn’t do it”.
This is how the case was summarised by the High Court justices:
The defendants submitted that they did not make the defamatory posts available to the public, nor did they participate in the publication of the defamatory posts, nor were they in any relevant sense 'instrumental' in the publication of the defamatory posts. Rather, they administered a public Facebook page on which third parties published material... 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.
In their decision, the justices determined that the news companies had 'encouraged and facilitated' public comments and were, therefore, 'participants in the publication of postings by the forum’s users and in that sense they were publishers from the outset...'
The Court held that the news companies could not hide behind a claim to be passive victims of Facebook’s operating systems and should bear the consequences of publishers in regard to defamatory comments on their public pages.
In my view, there is nothing contentious or novel in this decision; it is merely affirming the long-standing convention in relation to defamation law. However, there is a very “Chicken Little” view in some of the commentary.
For example, The Sydney Morning Herald's Michaela Whitbourn suggests that the High Court ruling has 'implications for all social media users'. This claim is backed up in the story with a quote from a legal scholar who affirms that "ordinary users” of social media platforms can be held liable as publishers for comments posted on their pages.
Well, colour me unsurprised.
Anybody who has even an inkling of what defamation law is all about would have been aware of this. Nothing has changed by the High Court decision. The Court has confirmed what most defamation lawyers and savvy journalists should already know — publish and face the consequences.
Let’s not forget that Pork Barillaro’s action against Friendlyjordies or Peter Dutton’s case against refugee activist Shane Bazzi were already possible because… guess what… If you post material on social media and other people can see it, you are technically and literally a publisher as far as defamation law goes.
I agree with the comments made by Dylan Voller’s legal team:
'This is a commonsense decision that accords with longstanding law on the issue of publication… media companies encourage increased engagement…This helps in attracting advertising revenue. With this strong commercial imperative driving them there was no doubt that the media companies lent their assistance to the publication of third-party comments.'
It’s no surprise that big media apologists are describing the High Court decision as 'a devasting defeat for the industry'. Let me translate this for you: “Oh sh*t, this is another blow to our already precarious bottom line. Shareholders will not be happy.”
Defamation law academic Michael Douglas sums it up very well:
The media could pay someone to sit on socials and remove dodgy content as it appears. Media companies point out that this option is virtually impossible, given the mountain of public comments they need to deal with.
Hiring a moderator also costs money. In an industry fighting to stay profitable, this is a big deal.
The question going forward is what will publishers need to do so that they are protected in future? The cheapest option is to turn off comments.
As the Independent Australia team already knows, moderation must be proactive and timely. Short of turning off comments entirely, it is almost impossible to avoid liability if somebody is determined to use a platform to defame someone else.
There’s also very little defence against stupid. People may comment in a way that is defamatory without any intent, but as the High Court has confirmed, that is irrelevant.
The best advice is to be conscious that defamation is easy to do and much harder to undo.
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