Yesterday, the Australian High Court ruled comment sections on the Facebook pages of media outlets are 'owned' by the publishers of the article, even if they aren't written by the media outlet. Importantly, that means the outlet is responsible for any defamatory comments. Let’s get into why this is a big deal, and how it happened.

The background

Dylan Voller, a detainee in the Northern Territory, was a catalyst for the Royal Commission into the Northern Territory’s Youth Detention System, after photos of him shackled to a chair wearing a spit hood were reported by the ABC.

Voller launched defamation proceedings against Nine, News Corp and the Australian News Channel in 2017, over third-party comments about him on their Facebook pages. The NSW Court of Appeal eventually ruled last year that news outlets were liable as publishers for Facebook comments made on their posts. The outlets then lodged a High Court appeal, with the court dismissing the appeal from the media outlets, and ordered the organisations to pay Voller’s legal costs.

A joint statement from the Chief Justices said, “the Court of Appeal was correct to hold that the acts of the [media outlets] in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments”.

So, what does that mean?

It is now the responsibility of media outlets to moderate the comments sections of their Facebook pages and face legal liability for failing to do so. A good way to imagine it is like a physical wall in a town square - while previously it was only the responsibility of media pages to take down graffiti on the wall once they became aware of it, it is now their responsibility as soon as the graffiti appears.

According to Professor David Rolph, a defamation law expert at the University of Sydney, “it [the ruling] confirms that you don’t have to prove fault; all you have to prove is a voluntary act of participating in the dissemination of the defamatory matter”.

What are some changes or implications?

As media companies now must engage in constant moderation of their comments section, they could be more inclined to turn off comments sections on posts, removing a ‘social aspect’ of social media. Casey Newton, Editor at Platformer and Contributing Editor at The Verge, told The Daily Aus yesterday's ruling could “generally encourage platforms to over-moderate content, which [can] limit free expression”.

Now the court has identified exactly who is responsible for the post, they can move on to the original matter at hand - whether or not the comments from Voller’s case are defamatory or not, and if the publishers have other defences they can rely upon.

It is now the responsibility of Australian m…

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