Don’t read the comments

Last week, the High Court ruled publishers are liable for defamatory comments produced on their social pages. 

The judgement on September 8 was made in Dylan Voller’s case against Fairfax Media, Nationwide News and Australian News Channel.

After multiple appeals by the media organisations, the High Court found “the Court of Appeal was correct to hold the acts of the appellants in facilitation, encouraging and thereby assisting in posting of comments by the third-party Facebook users rendered them publishers of those comments. The appeals should be dismissed with costs.”

Timeline of Dylan Voller’s case. Infographic: Michael Shaw.

Now, anyone who runs a social media page can be held responsible and sued over comments posted by users.

Curtin University media ethics and law lecturer Dr Thomas Yesudhasan says “[the ruling] will change the whole media landscape.”

He says the High Court ruled social media companies are responsible, but in defamatory law the commentator can still be held responsible.

“People have to take responsibility for what they are posting, not just the media, but everyone. Both parties should be held responsible.

“In my view, if you are [commenting], you need to know that if you are talking about someone’s private life, someone’s character, then you have to be careful,” he says.

“The implications for the media is that they have to take responsibility. It does not mean that individual responsibility is in anyway lesser than the media.”

Dr Thomas Yesudhasan. Photo: Michael Shaw.

All publishers affected

The ruling has also impacted community groups.

Administrator and moderator of the Greenwood and Kingsley community Facebook group Tabitha Eaton says she’s worried about the consequences this could have on her and the other admins of the group.

“It’s worrisome that we may approve a post innocently and then be to blame for someone else’s comment,” she says.

“It’s not always black and white.”

Ms Eaton says she’s been personally threatened with legal action before for mistakenly allowing posts deemed defamatory.

“Someone put up a post about a fish and chip shop – they were unhappy with their last order. A completely different local business owner contacted me and told me that if I allowed any negative posts about her business she would take legal action against me,” she says.

“I will probably make some changes. As to what [to do] right now I’m not sure but I will be looking over the page to see if there’s anything I can change to protect us more.”

Facebook provides a tool to page owners called Admin Assist to help moderate posts and comments on their pages.

You’re able to block certain keywords from being posted, as well as certain people from posting if they’ve been reported too many times.

Commenting can also be setup to automatically turn off under a variety of different circumstances. For example, if the post has received more than 200 comments in the past hour, or if the post has been reported more than 3 times.

Admins of Ms Eaton’s Facebook group are required to approve or deny all posts.

History of Decision

The case centres on Dylan Voller, an Aboriginal man who gained media attention after his detainment at a youth detention centre in the Northern Territory, was documented and featured on an episode of ABC’s Four Corners

Various news outlets around Australia published stories about Mr Voller to their Facebook pages, and readers left a mixed bag of comments. 

It’s important to note, the stories themselves were not defamatory, but instead, Mr Voller alleged that some of the comments left on their social pages were. 

In 2019, the Supreme Court of New South Wales found that media companies were classified as “publishers” of comments by readers.

The media companies appealed, but last year the New South Wales Court of Appeals found again to be in favour of Dylan Voller.

The High Court case on September 8 didn’t decide whether the comments were defamatory, but whether media organisations were considered publishers of those comments – which they were.