September 8, 2021
The five-two decision on Wednesday creates a precedent applying to Australian media companies, which potentially makes them liable as publishers of comments from social media users as though they made the statements themselves.
The ruling comes after an appeal by Nine Entertainment and News Corp in relation to the case of Dylan Voller, who in 2016 was filmed suffering cruel treatment in a Northern Territory prison.
The footage of Voller was posted online by Australian outlets and attracted comments which he claimed were defamatory. Voller sued the Australian, Sydney Morning Herald (now owned by Nine Entertainment), and News Corp’s Sky News Australia for the comments, claiming the outlets were responsible for the third party inputs, sparking a four-year legal battle.
The defending media companies argued that they couldn’t be considered publishers of their readers’ comments.
However, the majority of the Court held that the liability of a “publisher” depends upon whether they, by “facilitating and encouraging” the relevant communication, “participated” in the communication of the defamatory matter.
Media companies, “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,” reads the ruling. It concludes that the news companies were, therefore, the “publishers of the third-party comments.”
The ruling opens the door for Voller to pursue the outlets’ parent companies for defamation.
In the dissenting opinion, Justice Steward argued that companies posting to Facebook “starts an electronic conversation” that could spark “thousands of comments from around the world.” He added that the companies would have “no actual means of controlling the contents of such comment”.
A Nine spokesperson said it was “disappointed” with the outcome and that it would have “ramifications for what we can post on social media in the future.”
When the High Court tweeted on Wednesday that the ruling had been made, one user comically posted under the announcement that if someone left a defamatory comment, the High Court itself should be held responsible as the publisher.
When ABC News posted an article on the court’s decision, it removed the ability for users to comment on the post, indicating that the ruling may already be having a restrictive impact.