Hello and welcome to Article Seven of Let’s Get Legal! We hope you enjoy today’s article, and you can find a link to the entire series at the bottom of this post!

Introduction

Social media platforms are a contemporary development in the eyes of the slow-moving pace of the law. Even though social media platforms have been prevalent in everyday life since the early 2000s.

Across the Western world, legislators have a challenging balancing act to uphold individual freedoms and rights, with evasive policies restricting individuals’ ability to freely use social media. From the perspective of Parliamentarians, they are attempting to make social media a safe environment that does not facilitate criminal acts, encourage violence or hatred. However, there is almost always public outcry due to any statute affecting peoples’ freedoms on social media or the internet.

Another difficulty in this area is that the majority of social media platforms are run by private companies. However, as have seen in the countless US Senate enquiries into Facebook and related companies, the government holds social media companies to a higher standard and have unique policies they must abide by.

Recently, in New South Wales, the government has introduced what the media is calling ‘new draconian laws’. The Surveillance Legislation Amendment (Identify and Disrupt) Act (2021) was passed by both houses of NSW Parliament on 25 August 2021. This Act grants the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to:

  • Modify and delete data on someone’s social media account; 
  • Collect intelligence on criminals operating online; and
  • Take control of someone’s social media account.

Alarmingly, the AFP or ACIC can execute any of these tasks without being granted a warrant from the courts beforehand.

The primary area of concern for private citizens is the polices’ ability to take control of your social media account, which could strip you of your identity or allow police to peer into your private life. This causes grave concerns for any individual who has a lot of activity on social media platforms.

Despite the freedom social media gives individuals, this is only a facade. Comments people post on social media may receive numerous civil sanctions if they are defamatory. Even to the extent of making the social media page you are commenting on liable for not deleting your comments, as well as making yourself liable.

Nonetheless, the case we will review today is Fairfax Media Publications Pty Ltd; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27 (‘Voller’).

Background

  • Since 11 years old, Dylan Voller was in and out of prison for robbery, assault and car theft. In 2016 footage of Dylan Voller being mistreated in youth detention surfaced at the Royal Commission into the Protection and Detention of Children in the Northern Territory. Such footage included him being shackled to a restraining chair in the adult section of the prison, despite only being 17 at the time. His story was widely publicised by Four Corners in July 2016. Following Dylan Voller’s release from prison in 2017, numerous news companies created Facebook posts reporting the news. However, some users on Facebook posted derogatory comments towards Dylan Voller on news platforms’ Facebook pages, primarily commenting on his Aboriginal identity. Dylan Voller then sued the social media companies for not taking down the comments, and the case made its way to the High Court.

Facts

  • In 2020 the Court of Appeal of the Supreme Court of New South Wales found that users or organisations who own and operate public Facebook pages can be liable for any defamatory comments other users (third parties) make on their posts. 
  • The Court deemed that defamatory comments being displayed, despite being from third parties, were a form of publication. Hence, where users wrote defamatory comments, the owners of that public Facebook page were deemed to be publicising those comments.

Issue

  • The question brought before the High Court was whether Dylan Voller ‘had established the publication element of the cause of action of defamation against the defendants in respect of each of the Facebook comments by third-party users’.

Law

  • The court relied on various overseas cases from New Zealand and Canada to guide their decision making.
  • The Court examined Urbanchich v Drummoyne Municipal Council which concerned a graffitied wall with a defamatory statement. The court found that the Council did not facilitate the publication of the material, hence could not be held liable.
  • The court used the analogy of a Facebook page being an ‘electronic bulletin board’ where publishers have a duty and option to moderate and regulate the bulletin to escape liability. 
  • Thompson v Australian Capital Television Pty Ltd reinforced this analogy from the Court, which held that a party can be liable to defamatory comments where they have direct control over its publication.

Decision

The High Court of Australia dismissed the appeal, upholding the original judgment handed down by the NSW Court of Appeal and relying on the previous opinion of the court in Thompson v Australian Capital Television Pty Ltd. Hence, the Court found that parties who operate public Facebook pages have a duty to moderate the page from the comments of third-party users. Thus, the parties running the pages can be sued for other peoples comments on their posts.

Concluding Thoughts

This ruling poses significant concerns to any user operating a public page on social media, whether that be a discussion group, community group or topic-specific group. Users who operate and run these pages will be liable for defamatory comments their followers/supporters make on their posts. A further unanswered question is whether social media influencers or ordinary people with public accounts would be held liable or if it is only reserved for news companies.

Following this ruling from the High Court, Facebook quickly implemented a feature allowing people to disable comments on posts in ‘Groups’.

Despite the fact the case solely attacked news companies from publicising other peoples’ comments, it does not exempt individual people from liability for defamatory comments they personally make. Instead, a person in the position of Dylan Voller has the option of suing the news company, the person commenting or both. Hence, granting victims the ability to seek more damages (as they are more parties to sue) from an offence. (However, future reformation of the Civil Liability Act 2002 (NSW) may feature defamation and impose capped damages a victim can seek).

The opportunity cost of making individuals/companies liable for the comments on their posts is that it prevents open discussion of ideas and thoughts, limiting people to truly express themselves or complain about topics as most individuals/companies will choose to disable comments to avoid being liable. Otherwise, such individuals/companies will have to employ teams to closely monitor every comment on their social media posts which can drastically cut into a company’s profits, and some companies may not be able to afford this.

Individuals/companies that run public pages should not be liable for defamatory comments from third parties. Particularly having comments turned off on posts relating to the news significantly limits people’s ability to discuss their ideas and thoughts about the state of the world. Nonetheless, the recent ruling encourages extreme policing of anything people do/say on social media. Only individuals/companies who openly endorse defamatory comments should bear a portion of the liability for that comment. As it directly illustrates their affiliation with that comment.

Let’s Get Legal Series: https://thelevinelowdown.com/lets-get-legal-2/

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