High Court puts muzzle on Facebook trolls

There's a need to continue the overhaul of Australia's defamation laws after a High Court ruling found that Australians with Facebook or other social media pages could be held legally liable for defamatory comments posted on their sites, even without their knowledge or permission.

The issue is in the news after the High Court found Facebook page owners, in this case media outlets, are legally responsible for the words of Facebook commenters who comment on Facebook owners' posts.

It effectively means the Court's ruling affects all Facebook page owners who can now be legally held liable for defamation from comments posted on their page.

At our firm we expect Australia's defamation laws will be overhauled to allow a grace period for page owners to remove defamatory comments, as a result of the Court ruling.

The High Court dismissed an appeal by some of Australia's biggest media entities including the Sydney Morning Herald and The Australian, finding they are the publishers of third-party comments on their Facebook pages.

Former Northern Territory detainee Dylan Voller wants to sue the companies in the New South Wales Supreme Court over alleged defamatory comments posted on their Facebook pages.

However the case had stalled in a dispute over whether the media outlets were the publishers of the material, which is necessary for a defamation ruling.

He launched the defamation action in the New South Wales Supreme Court against big media groups but the case was side-tracked when the question arose about whether the media companies could be deemed to be the publishers of these comments.

The High Court found that, by creating a public Facebook page and posting content, the outlets had facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, and they were, therefore, legally responsible as the publishers of those comments.

The ruling is a defamation game changer and a real wakeup to all Australians who have a social media page with comments enabled.

While media coverage of the Court's ruling focused on the Voller matter, it did not widely examine the ramifications for all Facebook users.

The issue is especially relevant in these Covid times with social media aflame with trolls, anti vaxx groups and conspiracy theorists flooding the site with their bile and attracting hostile reactions from the community in ever increasing flame wars that often descend to personal attacks.

In effect the Court's decision means the person owning that Facebook (or social media) page is legally liable for any comments posted to it. It's going to be a real test of our cyber and defamation laws.

Another key factor is that the defamation occurs at the time of posting, not just after notification to the page owner of comments posted to the owner's page.

So you could have a Facebook page and someone trolls it leaving defamatory remarks about someone and even though you may not yet know about these remarks, the defamation will be deemed to have occurred.

The courts have long held that a person can be defamed by the remarks posted by others on social media platforms such as Facebook.

Last year the issue made headlines when the Principal of Gold Coast Tamborine Mountain State High School won a defamation action against several parents for comments about her posted on social media.

The action, which was costly and spanned several years, did not involve media companies, but illustrates that the general public is not immune from defamation liability for rants on Facebook.

In its decision on the Voller matter, the High Court rejected the media companies' argument that, to be a publisher, an outlet must know of the relevant defamatory matter and intend to convey it.

The court found that, by creating a public Facebook page and posting content, the outlets facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, and they were, therefore, publishers of those comments.

This decision now clears the way for Mr Voller's defamation action to proceed. The Court's decision did not relate to the defamation but focused on whether the media companies were liable for comment posted on their social media pages.

The decision will have wide reaching consequences for businesses, organisations, sports bodies and individuals with pages on social media.

Trolls and nasty keyboard abusers usually try to hide behind their anonymity in a flame war and use other people's pages to share their abuse. If the Court is making the page owner liable it's going to see tougher crackdowns and for media companies, more intensive and timely moderating of posts.

Individuals will also need to be doubly wary about who can post comments to their pages.

It should be noted the High Court decision was not determining blame in a defamation matter but inevitably this sort of decision may well generate a whole slew of defamation actions now.

Moving forward it can be seen as a good ruling in that it stops news media and other page owners washing their hands of what occurs on pages they control.

However the media groups rightly expressed frustration that at the time of the comments relating to Mr Voller, they were hampered because Facebook did not allow them to turn off the comments function. That has now changed to allow publishers to switch off comments on stories.

However, it highlights the difficulty traders now face with newer technologies. Will we see a return to times gone by where all comments are moderated before they are published? Will we now see moderation of comments which may lead to manipulation of opinions and weaponization of comments (picking comments which show one viewpoint only)?

There can also be limitations on what can be achieved by page owners. You cannot turn comments off on ads on Facebook.

We think there will be an adjustment made to the laws to allow a notice period wherein they must be taken down after notification by the person defamed. That is similar to the copyright Digital Millennium Copyright Act.

However, the nature of defamation is that the person is defamed from the time the post is public. Thus even with a notice period defamation may occur before it is taken down. Thus this is a very different concept to copyright infringement given how serious defamation is…. and how long lasting defamation can be.