A court has dismissed an appeal from several Australian media companies over a 2019 judgment that held them liable for defamatory comments posted by users on their Facebook page in response to news articles.
Indigenous Northern Territory youth detainee Dylan Voller, whose mistreatment in the Don Dale youth detention centre led to a 2016 royal commission, had sued the Sydney Morning Herald, the Australian, the Centralian Advocate, Sky News Australia and The Bolt Report over 10 comments on their Facebook pages in response to news articles about him between 2016 and 2017.
In June last year, the NSW supreme court found that the companies could be considered publishers of the third-party comments, even though companies are unable to screen comments posted on Facebook before they go public.
The decision has wide-ranging ramifications for media companies in Australia, which are now held responsible for content posted by users on their Facebook pages.
The court of appeal upheld the decision on Monday, finding that the companies did have sufficient control over comments to be considered publishers.
“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,” judge John Basten said.
Facebook does not allow for pre-moderation of comments on pages and comments cannot be turned off, however NSW supreme court justice Stephen Rothman had argued that the media companies could have used a word filter using extremely common words to pre-filter the majority of comments to only be visible to the page owner and that user and their friends.
The case led to the federal government announcing plans late last year to make platforms such as Twitter and Facebook liable for the content posted by third parties, as part of a wide range of planned defamation law reform.
The first tranche of legislation was due to be introduced this month, but the government has not yet announced any plans since the coronavirus pandemic hit.
In a joint statement, News Corp, Nine and Sky said the court had shown Australian defamation law was “completely out of step with the realities of publishing in the digital age”.
“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.
“Today’s decision means the media cannot share any story via Facebook without fear of being sued for comments which they did not publish and have no control over.
“It also creates the extraordinary situation where every public Facebook page – whether it be held by politicians, businesses or courts – is now liable for third party comments on those pages.”
The companies said they were considering seeking special leave to appeal to the high court of Australia.
“We also reiterate our calls for urgent law reform in this area.”
The court has yet to rule whether the comments on the page are defamatory, or on any compensation for Voller that would arise from any such judgment.
Three other media companies – Seven West Media, Bauer and Daily Mail – were so concerned at the original decision that they sought to intervene in the appeal, arguing that the media companies should be treated like internet content hosts under federal broadcasting legislation.
But this attempt was dismissed by the three judges, noting it was not raised during the original hearing.
“The interveners raised issues that went to the heart of the liability of media companies operating Facebook pages in a similar way to the defendants, in circumstances where the defendants did not raise, and did not propose to address, that issue,” Basten said.
“It was appropriate to identify this issue, even thought it could not affect the outcome of the appeal.”