The high court determines that Australian media outlets are liable for their social media comments

BCM 113 Ethics Essay

Dylan Voller appears at court

Photo Credit: The Australian

In September of 2021, the High Court ruled that media publishers would become legally responsible for comments which were made on their social media pages. The ruling meant that any media company which posts its content on social media and encourages or allows comments, would be the legal ‘publisher’ of comments which were defamatory and could potentially be sued. The court ruling is believed to be the reason why many Australian media outlets now choose to completely switch off the option to comment on their posts, or moderate their comment sections heavily, for example, banning certain words, phrases and names through the ‘mute’ settings on platforms such as Facebook, Instagram and Twitter. The decision caused major upheaval throughout the Australian News and Media industry, with Channel Nine stating it was “disappointed with the outcome” at the time it was announced. Australian law has less protection for freedom of expression than the UK or the US (Corney, 2014), thus it has been considered by many media experts that Australia is becoming too sensitive with legal relations which regard media, defamation and free speech. It was also determined that the social media user who originally uploaded a comment would also be held accountable for their comment under defamation law. However, if an individual were to sue over one of these hypothetical comments, it would be worth more to badger the media company itself as there would be more money to gain. This decision from the high court came from the legal spat between Dylan Voller and Facebook in 2019.

During this case, the Australian legal system’s high court dismissed an appeal against a previous case which was in favour of a defamation lawsuit for Dylan Voller. Voller appeared on ABC’s Four Corners as he was a former inmate at the Don Dale Youth Detention Centre, a few media companies then published stories about him to their social media pages, exploring Australian youth detention. Unfortunately, readers left rather damaging and harsh comments underneath these Facebook posts regarding Voller, and whilst the media companies did not defame him, he argued that the comments did and decided to legally pursue these media outlets in 2019. Voller’s legal argument was that the stories these media companies - including Fairfax Media - had posted were technically the “publishers” of these defamatory comments. His lawsuit was successful, after his victory the media companies appealed, however the New South Wales court of appeal ruled in Voller’s favour still. After outrage from media companies and some everyday Australians, the media decided to appeal to the high court, thus creating the legal case this essay explores.

Dylan Voller’s lawyer, Patrick O’Brien stated that the ruling would help to “protect people from online abuse.” During a press interview, O’Brien affirmed his stance on media outlets being held responsible for their comment sections: “What this means for people who might be vulnerable to social media mob attacks, they’re protected by this decision because it means that the media companies bear responsibility for those posts,” (ABC News). Therefore, the Australian legal system now considers the media liable for any defamatory comments which occur online. A rather significant fact of the matter is that, in 2019, at the time Voller’s original lawsuit occurred, Facebook did not have an option in its settings to ban commenting, and it did not allow for page moderators to completely switch off comments on posts. Facebook has since changed this.

There are a variety of ethical issues which have arisen as a result of this case and its effects on the Australian media industry. The Media Code of Conduct is the enforcer of Australian media activity from the ACCC (Australian Competition and Consumer Commission) and with outcry from media companies that things are becoming harder for them, through tighter laws which have arisen in the past two decades thanks to the emergence of the internet, there is a lot for social media regulators to be considering now. For example, people are now a little bit more censored in what they can say and do in comment sections on social media. Ethically, this can seem quite concerning as the very important “social” part of social media is now more condensed, thus making the industry a little bit pointless and tedious. There is, of course, a major difference between actually defaming somebody in a comment section and commenting a thoughtful opinion, but the everyday Australian may now become more fearful when considering their participation in online forums from media outlets. Whilst this may be great for people who worry about being defamed, it has a negative impact on media outlets which seek engagement statistics from their social media pages and are interested in sparking debate and conversations within their comment sections, furthermore, believers in freedom of speech are likely to be frustrated by these new laws which came into effect in September 2021. Another ethical issue is the extra work and possible stress that would be impacting social media moderators: consider an employee of a media outlet who is responsible for reading their comment section and ensuring there is no defamatory material being posted. There would be an intense amount of stress and confusion when having to deliberate and determine what is defamatory and what is a simple criticism, a social media moderator could make one mistake and cost their company and employer millions of dollars if a lawsuit against them arose.

Australian media companies are clearly concerned and bothered by these new rules, this is evident as they have tried to appeal the high court’s decision twice but have failed. Some industry commentators, such as Alan Jones on Sky News, have labelled the new laws “an attack on free speech and unAustralian”. Rupert Murdoch’s ‘The Australian’ also turned off their comment sections under articles briefly in September 2021, it is unknown whether this was an ironic protest of the rules or a legitimate new fear media companies now face. However, this speaks to a growing population of Australians who feel anger towards both the media and legal system: “People on the right are just so pissed off. They are angrier than they have ever been, because they don’t feel there is anything on the ABC that resonates with them or people like them. They just don’t see why they should go on paying for it.” (- conservative commentator, Jonathan Holmes, The Guardian, 2019). The Australian Ethical Code of conduct is affected by changes in media rules and thus must now consider this new ruling from the high court.

To conclude, it can be considered that the Australian high court’s September 2021 ruling on social media comment moderation will have major implications to the news and media industry. There is now an added stress for media professionals to consider, as well as some Australians feeling the decision is an attack on free speech, however this will prevent more people from experiencing defamation online. This is relevant for communication and media professionals as they must understand the consequences of social media comments, especially if this falls within their relevant field of study and employment. The case is closed currently but remains controversial.

REFERENCES:

Gillies, R. (2020.) The effect of Right-wing bias in Australia's media. Independent Australia. Available: https://independentaustralia.net/business/business-display/the-effect-of-right-wing-bias-in-australias-media,14569

Burton, M. (2021) Australian media outlets liable for Facebook comments, court finds. Reuters.com. Available: https://www.reuters.com/business/media-telecom/australian-media-outlets-liable-facebook-comments-court-finds-2021-09-08/

Rolph, D. (2021) High Court rules media liable for Facebook comments on their stories. The University of Sydney Law School. Available: https://www.sydney.edu.au/law/news-and-events/news/2021/09/13/high-court-rules-media-liable-for-facebook-comments-on-stories.html#:~:text=A%20publisher%20can%20be%20held,social%20media%20users%20throughout%20Australia.

Holmes, J. (2019.) 'Bias, balance and the ABC: Is there anything for people on the right?' The Guardian 10 March. Available: https://www.theguardian.com/media/2019/mar/10/bias-balance-and-the-abc-is-there-anything-for-people-on-the-right

Griffith, C (2021.) 'Smaller Australian publishers sign deals with Facebook and Google', The Australian 27 February. Available: https://www.theaustralian.com.au/business/technology/smaller-australian-publishers-sign-deals-with-facebook-and-google/news-story/420840de5769c85c6d406abc2422ab95

Noakes, S. Hook, S. (2021.) The blurred line between the professional and the personal: Regulation of teacher behaviour on social media. Western Sydney University, Parramatta. Available: https://journals.sagepub.com/doi/full/10.1177/0004944120924889