Guarded comments

High Court ruling on Facebook comments a high risk for publishers; high time for reform

16 September 2021 | Kim Wingerei, MW Media

In its recent ruling the High Court decreed publishers have responsibility for comments made on their Facebook pages. In the absence of a 21st century legal framework covering this newfangled thing called the Internet, the Court’s reasoning for the ruling refers in part to case-law dating back to the 19th century.

The High Court was ruling in the Dylan Voller defamation case, hearing an appeal of a lower court decision in NSW. The defendants in the case – Nine Entertainment (Fairfax Media & Nationwide News) and Sky News – have been sued for defamation by Dylan Voller, whose horrific mistreatment in juvenile detention in 2016 led to a Royal Commission. Voller contended that the publishers had allowed seriously damaging and defamatory comments about him on their respective Facebook pages.

The publishers had argued they were not responsible for those comments as they were published on Facebook, not on their own platforms. The High Court disagreed and the case will now be prosecuted on the basis that publishers are responsible for comments made by third parties on their Facebook pages.

The comments made about Voller include accusing him of rape and a violent attack on a Salvation Army officer, and the publishers will not claim a defence of truth as they didn’t contend or write those things. People on their Facebook pages did.

Given the High Court’s decision on the principle of the case is final and can’t be appealed, legal observers now believe a settlement may be the most likely outcome of the case.

The repercussions of the Voller decision, however, are far reaching. They may extend to other social media channels, feeds and pages; to any social media “mechanism” via which a publisher allows comments. It may extend even to anybody with a social media page, not just commercial publishers and media.

This has come about partly because media legislation has not kept up with the enormous changes in publishing over the last few decades; and partly because publishers have been enjoying a free ride on the back of the Internet behemoths – in particular Facebook and Google.

The principle that newspapers are responsible for the content of their “letters to the editor”, is well established and one reason that the papers used to insist on knowing the name and contact details of the authors of such letters, even when published anonymously.

But along came Facebook and others offering publishers not only a free platform for people to comment on their stories, but potentially an additional audience to which they could attract more eyeballs for their publication, radio or TV channel, leading to more advertising revenue.

This is one of the reasons the High Court gives for not accepting the argument that the publishers have no responsibility for their Facebook comments. As the judgement states:

the existence and number of comments … from third-party users is an important (and, more probably than not, the most important) aspect of the public Facebook page, as it affects the Facebook algorithm and increases the profile of the Facebook page and the consequential popularity of the Facebook page, thereby increasing readership … and augmenting advertising sales

High Court Judgement

In other words, encouraging comments on their Facebook pages is integral to sharing stories on social media platforms for the purposes of increased advertising sales.

The other argument that the Court rejected in the Voller case is the principle of “innocent dissemination”. This is an ancient concept of defamation law that in its modern guise may be better referred to as the “graffiti principle”. If someone writes defamatory comments on the outside wall of a building, it may be considered a publication, but the owner is not responsible for it.

Provided the owner removes the graffiti as soon as he or she becomes aware of it.

And that is the crucial point that the High Court makes. The owners of the Facebook pages did not make a reasonable effort to moderate or remove the comments, hence the “graffiti principle” does not apply.

The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

High Court Judgement

The publishers could, of course, argue that the effort to moderate the huge volume of comments is impractical and very expensive, but the Court could not care less; partly because there is no law or precedent that mentions social media platforms and where they fit into the publication ecosystem.

Facebook, Google, Twitter et al operate with abandon on a global scale, subject to various degrees of regulation in different jurisdictions. The EU has slapped them over the knuckles with billion dollar fines a few times. In the US, anti-trust lawyers are sharpening their arguments in anticipation of a decade or more of legal stoushes in a number of states. Yet the only certain result is fat fees for lawyers.

And while they claim to be “good citizens”, the social media giants continue to enjoy a largely unregulated existence. Or to be more precise, they regulate themselves, mostly when public outcry compels them to do so (and their share prices might be threatened). Their general stance is one of being innocent bystanders:

I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online, private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that.

Mark Zuckerberg – Facebook CEO

In Australia, the only attempt to “regulate” their behaviour has been the “Digital Media Bargaining Code”, laws championed by the ACCC, prompted by the Coalition government, and enacted earlier this year. The only real outcome however has been promises by the digital giants to transfer a few hundred million dollars of their advertising revenue – a tiny percentage of Google and Facebook’s sales – to Rupert Murdoch’s News Ltd, Nine Entertainment, Kerry Stokes’ Seven media empire and a few others.

The code has done nothing to change the behaviour of the social media giants. It hasn’t stopped them continuing to sell personal data to advertisers. It hasn’t stopped them selling data to political parties and others who want to influence elections by digital surveillance and manipulation.

Nor is there any legislation that compels Facebook and other social media companies to be responsible for their content, to police hate speech, to stop the dissemination of fake news and misinformation which might put people’s lives at risk.

TV and radio broadcasters in Australia are subject to licensing conditions which govern some of the things they can and cannot do with their content. All publishers are subject to laws and regulations which hold them accountable for what they say and write, including some of the most draconian defamation laws in the Western world.

Some of these laws and regulations don’t always work as intended as they have not kept up with changes in the media landscape. Many are also poorly administered by regulators such as media regulator ACMA who have little power and even less inclination seems to deploy what powers they do have.

For all intents and purposes, Facebook, Google, Twitter and others are entirely a law unto themselves. They don’t need a license to operate, they are seemingly not subject to defamation laws, they don’t pay much tax and seem answerable first and foremost to their shareholders.

They are a law onto themselves that not even the High Court can do much about. If it is the High Court’s role to judge the laws, and establish precedent, which they have done in the Voller case, it is the job of the Parliament to make new laws. The ball is now squarely in the court of the Government to sort out the mess that is defamation law in a digital world, and to regulate the activities of gigantic, new, young digital platforms whose power, with the tweak of an algorithm, is now such that it might even bring down governments themselves.

This article was first published by, Kim Wingerei is a businessman turned writer and commentator. Originally from Norway, he has lived in Australia for 30 years and is the author of ‘Why Democracy is Broken – A Blueprint for Change’.