Court takes swipe at the media for encouraging keyboard warriors
By William Evans
In a recent decision, the Supreme Court has found Australian media companies liable for defamatory comments made by others on their social media pages.
In Voller v Nationwide News Pty Ltd & Ors [2019] NSWSC 766, the court was asked to consider who was responsible for third party comments on public Facebook pages. While it has long been the law that the commenters themselves are liable, it now seems that plaintiffs will also have a choice to sue the owners of the pages.
Under defamation legislation the ‘publisher’ can be held liable for defamatory material, but it has until recently been the law that an ‘innocent intermediary’ was not responsible. In Voller the court found that the media were not an innocent intermediary and were in fact primary publishers of the defamatory material.
Central to the court’s judgment were several key findings based on evidence from the media companies about how their pages were administered. The judge’s inference in the case was that despite having the technology available to filter comments before they were published, the media deliberately chose not to implement it because they were looking to further their own commercial interests by generating interest in stories.
The case is said by some commentators to significantly expand the defamation laws in Australia. Predictably it has also drawn an outcry from the media with several executives expressing indignation about being made liable for the actions of others.
Others see the case as a good example of the law attempting to keep pace with changes in technology, and to finally sheet home some responsibility to users with large readership who ‘turn a blind eye’ for the purpose of attracting more pages hits.
The decision should serve as a warning, not just to media organisations, but to any operator of a social media page, to actively monitor and filter comments made by others.
Media organisations in particular ought to carefully consider whether to enable comments at all on articles known to generate fierce public debate, particularly when the reason for doing so is (or appears to be) their own self-interest.