After landmark ruling, your Facebook comments could lead to Australian media companies being sued for defamation

  • Former Don Dale Youth Detention Centre detainee Dylan Voller is suing Nine Entertainment and News Corp Australia over a series of Facebook comments.
  • During the court case, New South Wales Supreme Court Justice Stephen Rothman determined the media companies could be regarded as publishers of the comments.
  • This would mean media companies could be sued for defamation instead of the people or websites that publish Facebook comments themselves.

A court case between former youth centre detainee Dylan Voller and several media companies over a series of Facebook comments has thrust Australia’s defamation laws into question.

Dylan Voller, a former detainee who was abused at Northern Territory’s Don Dale Youth Detention Centre, is suing the Sydney Morning Herald, the Australian, the Centralian Advocate and The Bolt Report for comments members of the public made about him on 10 Facebook posts between 2016 and 2017, the Australian reports.

The comments by members of the public included claims that Voller had attacked a Salvation Army offer, raped an elderly woman and conducted a carjacking, according to the ABC, and Voller claims the posts made false and defamatory accusations about him.

Voller was one victim at the centre of the 2016 exposé of shocking treatment of youth in Australia’s child detention facilities. In July 2016, an ABC Four Corners report exposed the disturbing practices taking place in Australian detention and youth centres, including Voller being taped in a restraint chair with a spit hood over his head, physical abuse of children, the prolonged solitary confinement of children and the use of tear gas.

The report led to a royal commission into the mistreatment of children of youth in child protection facilities. Despite the commission’s findings, which included possible criminal conduct by youth detention officers and the harassment of witnesses, police announced that no charges would be laid.

During this time, publications wrote stories about Voller’s life and distributed them to Facebook. In the comments under the post, members of the public made the claims that are allegedly defamatory. Media companies cannot prevent comments from being posted on Facebook, though they can hide comments after the fact and set up a keyword or profanity filter.

Under a landmark ruling carried out on June 24, New South Wales Supreme Court Judge Stephen Rothman determined that the media companies, Nine Entertainment and News Corp Australia, could be regarded as publishers of the Facebook comments on their company’s pages, meaning the companies will be liable under defamation laws rather than the person or website who posted the comment themselves.

“It is not the compiling of a comment that gives rise to damages in defamation; it is its publication,” Rothman said.

During the ruling, Rothman said this issue was around an “emerging area”.

“Many defamation proceedings have been taken in relation to social media,” the ruling said. “Plaintiffs have sought damages against persons who have defamed them in emails and on websites. In most, if not all, of such proceedings, it is the owner of the website (or email address) who has been the publisher of the defamatory material…”

While Rothman acknowledged that it was a third-party user that had made the comments, he found each company “had the means effectively to delay the publication of the third-party comments and to monitor whether any were defamatory, before releasing them to the general readership.”

News Corp Australia said in a statement emailed to Business Insider Australia the ruling highlighted how “out of step” Australia’s defamation laws are compared to other English speaking democracies. News Corp also identified the need for change in this area.

“This ruling shows how far out of step Australia’s defamation laws are with other English-speaking democracies and highlights the urgent need for change.

“It defies belief that media organisations are held responsible for comments made by other people on social media pages. 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 said.

News Corp is also considering whether to appeal the case.

A spokesperson from The Sydney Morning Herald said the company is assessing the implications this ruling could have on the media industry. “The Sydney Morning Herald is reviewing the judgement and considering its options following today’s decision and the implications the ruling may have on the industry,” the spokesperson said in an emailed statement.

Business Insider Australia has reached out to Facebook for comment.

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