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Appeals court in Australia confirms news publishers are liable for users’ comments on their Facebook pages

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In wild ruling that highlights how badly those enforcing the law don’t properly understand the internet, an Australian Appeals court has allowed a man to sue news outlets for the allegedly defamatory comments made about him by the public in the comments section of their Facebook Pages.

The media houses claim the court ruling is impractical and that they can’t possibly be responsible for the comments that users make to their Facebook Page.

The plaintiff of the defamatory case is Dylan Voller, an ex-NT youth detainee. While at the Don Dale Youth Detention Center, Voller’s mistreatment led to a 2016 royal commission. The young man is claiming damages over ten comments made by the public on the Facebook pages of the Centralian Advocate, Bolt Report, Sydney Morning Herald, The Australian, and Sky News Australia.

The media companies are arguing that it is impractical for them to review comments by the public before they are published – especially when it’s not even on a platform they control. However, the court somehow argued that these companies could be deemed third-party publishers of comments.

“They facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory,” said the three-judge panel that consisted of Justice John Basten (73) , Justice Carolyn Simpson (74), and Justice Anthony Meagher (66).

The court’s decision is in line with a ruling made by the Supreme Court Justice Stephen Rothman in 2019, who found that admins of Facebook pages could review comments by the public. According to Rothman, the media houses can hide comments as they await approval.

“This would require additional resources. But, at worst, would require the equivalent of 2.5 employees, and that would include some work already performed.” Justice Rothman continued to explain in his ruling that, “The evidence also revealed that it was important to the defendants (the media companies) that comments be made available on their public Facebook pages so as to increase interest and thereby increase advertising revenue.”

It follows that media houses in Australia will have to revise their social media strategies to include the moderation of comments made by the public.

After the ruling, which was made on June 1, Australian News Channel, Nationwide News, and Fairfax Media expressed their disapproval in a statement. According to these media houses, the ruling goes against the realities of publishing in social platforms.

“The decision fails to acknowledge that it is Facebook that controls its platform, including that Facebook gives media companies no ability to turn off comments on their pages. It is Facebook that must be held responsible for content posted by its users, not media companies,” read part of the statement.

They also warned that the ruling creates an unrealistic situation where all public Facebook pages will be responsible for third-party comments. These pages include those held by “politicians, businesses, or courts.”
The media companies said they would review the judgment to form a strategy to appeal for special leave at the High Court of Australia.

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