In a world first, The NSW Court of Appeal has rejected a bid by local media entities to overturn a ruling in regards to reader comments on their Facebook pages.
Monday’s judgement follows an appeal by The Australian, the Centralian Advocate, Sky News Australia and The Sydney Morning Herald who lost a defamation action, last June in the NSW Supreme Court. Dylan Voller, who was found to have been badly mistreated at Darwin’s Don Dale Youth Detention Centre, sued the media outlets for allowing defamatory comments to be posted by readers on their Facebook pages.
Facebook and other social media platforms have have long held the position that they are not publishers, do not vet comments posted by users on their sites and therefore bear no more responsibility for such content than the paper mills that supply newspapers. Social outlets only become responsible in the event they are made aware of any problematic content and will only consider deleting it if a formal complaint is lodged with them.
The appellants argued that Facebook did not provide them with any way of moderating comments before they were posted and that, they too, were unaware of the10 allegedly defamatory comments posted by third parties on their Facebook pages. There was no complaint received from Mr Voller, himself, nor did he request that the posts be deleted, prior to launching defamation proceedings.
In his landmark decision last June, Justice Stephen Rothman – while conceding that he was pushing defamation law in Australia into “uncharted territory” – accepted the social giants’ position and ruled against the media companies, who he found to be the actual publishers of and resposible for the offending third party comments.
In Monday’s decision, the Appeals Court upheld Justice Rothman’s earlier ruling because the publications “encourage and facilitate the making” of Facebook comments.
“By the terms of their arrangements with Facebook, and by their invitations to members of the public to comment on their news items, the applicants accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments,” said this morning’s judgment.
“They did so from the time they made their Facebook pages available to those who wished to comment, and by actively inviting comment. It was the applicants who provided the vehicle for publication to those who availed themselves of it.”
Legal experts warn that this decision, if it goes to further appeal and is upheld in the High Court, will likely force mainstream media entities to review their use of social media platforms in regard to the legal risks they pose.
Read Peter Saxon’s comments on this topic in next Monday’s radioinfo.
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