Court finds media companies liable for Facebook comments

By Mariam Cheik-Hussein | 24 June 2019

The NSW Supreme Court has ruled that three of Australia’s largest media companies are liable for comments on their Facebook pages.

Dylan Voller, who was at the centre of the Don Dale Youth Detention Centre scandal, launched a defamation action against  Fairfax Media, now merged with Nine, Australian News Channel, publisher of Sky News, and News Corp's Nationwide News.

Voller claims comments on stories published on the Facebook pages were defamatory.

The stories were published by Nine’s The Sydney Morning Herald, The Australian, Sky News, The Bolt Report and Centralian Advocate.

Supreme Court Justice Stephen Rothman found the companies were publishers of third-party comments because as owners of the page they have the ability to monitor those comments.

“The evidence also revealed that it was important to the defendants that comments be made available on their public Facebook pages so as to increase interest and thereby increase advertising revenue,” Rothman said.

The court found that each company had the capacity to hide each comment until that comment was approved.

“This would require additional resources, but, at worst, would require the equivalent of 2.5 employees and that would include some work already performed," the judge said. 

In court, Timothy Love, Australian News Channel’s head of digital, accepted that uploading material from Andrew Bolt’s program was likely to provoke comments.

He also added that nothing “specific” was done about considering the risk that people who were intolerant and irresponsible may be posting to comments on the Facebook page.

The ruling means publishers across Australia will need to rethink their social media strategy to ensure they’re able to adequately moderate comments on platforms.

It comes after media owners criticised social media platforms for allowing violent material to be livestreamed without moderation. Following the Christchurch terrorist attack, publishers said Facebook and YouTube-owner Google needed to be held to account, but stopped short of supporting the new social media laws which makes it a crime to not remove “abhorrent violent material expeditiously”.

The court hasn’t yet ruled on whether the comments were defamatory against Voller. 

A News Corp Australia spokesperson says the ruling shows how far out of step Australia's defamation laws are with other English-speaking democracies and highlights an urgent need for change.

“It defies belief that media organisations are held responsible for comments made by other people on social media pages," the spokesperson  says.

"It is ridiculous that the media company is held responsible while facebook which gives us no ability to turn off comments on its platform bears no responsibility at all.

“News Corp Australia is carefully reviewing the judgment with a view to an appeal.”

The Sydney Morning Herald says it’s also reviewing the judgement and the implications the ruling may have on the industry.

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