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The high court has cast doubt on media companies’ claims that they are not responsible for defamatory comments on their social media posts.
Fairfax Media and News Corp have taken the matter to the high court after a NSW court of appeal found they were liable for defamatory material in Facebook comments on their posts about the incarceration of juvenile offender Dylan Voller, whose mistreatment in the Northern Territory’s Don Dale youth detention centre led to a royal commission.
The NSW supreme court had ruled that the media companies were the primary publishers of third-party comments on their public social media pages and that they therefore could not rely on a defence of “innocent dissemination” which protects some distributors, such as newsagents and internet service providers.
In a high court hearing on Tuesday, the media companies’ lawyer, Neil Young, suggested they did not have “knowledge and control” over subsequent comments on Facebook posts, and had not “intentionally lent assistance” to the publication of defamatory material.
Young noted the appellants were not able to disable Facebook’s comment functionality – something the social media giant has changed in response to the 2019 landmark case. All users can now switch comments off and on.
Voller’s counsel, Peter Gray, submitted that all three elements of defamation, including publication, were judged by “strict liability” with no regard to fault, intention or knowledge.
In written submissions, Voller submitted the media companies had failed to plead and prove that they should be protected by the “innocent dissemination” defence, and they were now trying to argue the same issues by other means.
Voller argues the media companies did intentionally lend assistance to publication of comments, including by maintaining their Facebook pages and posting their stories to it.
Voller’s submissions argue the posts were “highly emotive” and invited derogatory comments. They cite posts such as “Dylan Voller’s list of jailhouse incidents tops 200” and “Live Now: The Royal Commission has promoted Dylan Voller as the hero victim of prison officials – it’s a disgrace’”.
Several justices noted that the way media companies use Facebook invites comments, and that posting news stories on Facebook was to their commercial benefit.
Young submitted that the only “active steps” the media companies had taken were to set up Facebook pages on Facebook’s terms and conditions, which “preceded the creation of defamatory material by third parties”.
Young said Facebook had become “notoriously widespread”, with more than 15 million Australian users, and was used by many public institutions including courts, libraries and charities which derive no commercial benefit. He questioned “where this leads” if all such institutions were liable for defamatory third-party posts.
But the chief justice, Susan Kiefel, suggested the media companies’ argument amounted to whether hosts of news sites should be given the benefit of some modified application of the defence of innocent dissemination.
“We’re not in the realm of publication,” Kiefel said, doubting the central proposition of the appellant’s case. “It’s not a topic for us, is it?”
The comments signal that policy questions of liability for third-party comments might be better addressed by parliament.
Young insisted that knowledge and control were relevant to innocent dissemination and to publication.
But Kiefel noted that if absence of knowledge and control meant a person was not a publisher, then “you wouldn’t need an innocent dissemination defence, you’d rely on no publication”.
Gray submitted that the media companies’ suggestion that publication required some element of intention was “beguiling but dangerous”.
He warned unpredictable consequences would reverberate through defamation law and the regulation of the internet, including social media, search engines and forums.
Several judges queried whether any part in dissemination – however small - triggered liability. Justice James Edelman also asked whether merely having a Facebook page itself invites comments and liability.
Gray replied that in Voller’s case the media companies had done “much more” than set up the page, and the conclusion they were liable was “inescapable” as they had published “plainly provocative” invitations to comment.
The court reserved its decision.