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The Tasmanian premier Peter Gutwein’s decision not to allow comments on some Facebook posts is likely just the beginning of the broader ramifications of a high court decision on liability for third-party comments on social media, according to one defamation law expert.
Earlier this month, Fairfax and News Corp lost a bid in the high court to escape liability for allegedly defamatory comments posted on their Facebook pages in response to articles about Dylan Voller, whose mistreatment in the Northern Territory’s Don Dale youth detention centre led to a royal commission.
The five-two judgment went far beyond just finding media companies were responsible for comments made on their Facebook pages, finding that merely facilitating comments amounted to “participation” in the communication of defamatory material, even if the original poster was not aware of the content of later comments.
The decision means people who run Facebook pages or other social media accounts will need to closely moderate all comments at all times, and delete potentially defamatory content, or switch off comments altogether – a feature Facebook introduced in March.
On Friday, Gutwein announced on his Facebook page that in the wake of the judgment, some posts on the page would have comments turned off.
“The recent Facebook defamation ruling by the High Court has determined that the page owner is now legally responsible for user comments on posts,” the post stated.
“We know social media is a 24/7 medium, however, our moderation capabilities are not. As a result, there will be some changes to how users can interact with this page going forward.”
Defamation expert at the University of Sydney law school, Prof David Rolph, said Gutwein’s move would probably be the start.
“That’s, I think, consequence of the high court’s decision – to get people to think seriously about what they post and are they encouraging or inviting comments because if you’re encouraging or inviting comments, then you can be liable for third party comment,” he said.
He said July’s defamation law changes, which require concerns notice letters to be sent before court action, as well as a requirement that those bringing cases must demonstrate the balance of probabilities that serious harm has been suffered as a result of the allegedly defamatory comments will likely affect cases getting to court. However, Rolph said most would manage the risk for now.
“I just think, particularly for organisations and high-profile individuals with social media presence, it will just be prudent for them to consider their options about how they can manage their definition of risk.”
Neither the federal Labor party or the Greens have told MPs to cease allowing comments on posts so far. The Greens have a policy on what is acceptable in comments, but still allow comments to be posted.
The offices of both the New South Wales and Victorian premiers told Nine Newspapers they were considering the decision and whether or not they will allow comments on social media.
Education minister Alan Tudge’s Facebook page switched off comments on a post last week where he stated he did not recognise Melbourne or Victoria any more, and “basic freedoms” were being denied. Comments were shut off after over 1,000 comments had been received. Tudge’s office did not respond to questions on whether this was related to concerns about defamation, or just to manage the high volume of comments.
The prospect of reduced interactions on Facebook posts as a result of switching off comments may deter some politicians from following in Gutwein’s steps. Facebook would not comment on how much of an impact switching off comments might have on pages’ reach.
Facebook is currently reviewing the implications of the high court decision, and a spokesperson pointed to a statement made in March about the limiting of comments being designed to help pages “feel safe and engage in more meaningful conversations with your community.”
After the high court’s decision, the case will now return to lower courts to determine whether Voller was defamed, potential defences and damages. Rolph said key questions such as liability and whether the comments were defamatory, as well as what defences media companies may run would also determine the wider impact of the judgment.
“There’s been no determination about whether the posts are in fact defamatory. And there’s been no determination about any defence like innocent dissemination, or the immunity under the Broadcasting Services Act,” he said.
Under the Broadcasting Services Act, the case could be found invalid if it would have the effect of finding the media companies, as the host of content on the internet, liable for that content where they are unaware of the content, or it would require them to monitor the content.
Bauer Media, Dailymail.com Australia and Seven West Media sought to intervene and raise this issue in the initial appeal, however, because it was not raised by one of the main parties, it could not be determined on appeal.