Australian media outlets lose High Court appeal over Facebook defamation ruling
This will impel a huge upsurge in censorship as companies try to protect themselves
The High Court has ruled that media outlets are legally responsible as “publishers” for third parties’ comments on their Facebook pages, in a decision with implications for other organisations and people with social media accounts.
The Court of Appeal ruled in June last year that news outlets including The Sydney Morning Herald and The Australian were liable as publishers of readers’ Facebook comments about Northern Territory youth detainee Dylan Voller because they encouraged and facilitated the comments by setting up public Facebook pages.
The media outlets lodged a High Court appeal. In a decision on Wednesday, the court dismissed the appeal and ordered the organisations to pay Mr Voller’s legal costs.
Chief Justice Susan Kiefel and Justices Patrick Keane and Jacqueline Gleeson said in a joint judgment that “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”.
It has long been the case in defamation law that a person can become liable for the continued publication of defamatory comments by unauthorised third parties on physical walls or noticeboards controlled by them once they become aware of the comments and fail to remove them.
The NSW Court of Appeal said media outlets were in a different position and were legally responsible as publishers “from the outset” because they “encouraged and facilitated” the comments by having public Facebook pages. The court said it was immaterial that they deleted the comments once becoming aware of them.
At the time the comments were published, Facebook did not allow the hosts of public pages to pre-emptively turn off all comments on posts, although any comment could be deleted after the fact.
Facebook has since rectified this issue and given the hosts of public pages more control over comments.
In a separate judgment, High Court Justices Stephen Gageler and Michelle Gordon said: “Where ... the operator of an ‘electronic bulletin board’ posts material with the intention that third parties will comment on the material posted, the operator cannot escape being a publisher of the comments of those third parties.
“The most appropriate analogy is with live television or talkback radio.”
Justices Gageler and Gordon said the media outlets’ “attempt to portray themselves as passive and unwitting victims of Facebook’s functionality [because they could not disable comments] has an air of unreality”.
“Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences,” the judges said.
Whether the media outlets are publishers of the comments was a preliminary issue in the case.
Now that the High Court has established that the media outlets are publishers, the case will return to the NSW Supreme Court for a trial on the remaining issues, including whether the comments in fact defamed Mr Voller and if any defences apply.
The media outlets may still be able to raise a number of defences at the eventual trial, including the defence of “innocent dissemination”. Commonwealth laws exempting “internet content hosts” from liability for some online content may also apply.
Mr Voller launched defamation proceedings against Nine, publisher of this masthead, News Corp Australia and the Australian News Channel in 2017 over comments by readers on the Facebook pages of the Herald, The Australian, the Centralian Advocate, Sky News Australia and The Bolt Report.
In a pre-trial decision in June 2019, largely affirmed by the Court of Appeal, Supreme Court Justice Stephen Rothman found the media companies had published the comments, which is a threshold legal issue in the case.
Mr Voller’s lawyers, O’Brien Criminal & Civil Solicitors, said, “this is a common-sense decision that accords with longstanding law on the issue of publication”.
“It is commonly known that media companies encourage increased engagement on their posts so that their content is seen by a larger audience.
“This helps in attracting advertising revenue. With this strong commercial imperative driving them there was no doubt that the media companies lent their assistance to the publication of third-party comments.”
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Federal government using social-media giants to censor Americans
Ask questions or post content about COVID-19 that runs counter to the Biden administration’s narrative and find yourself censored on social media.
That’s precisely what data analyst and digital strategist Justin Hart says happened to him. And so last week the Liberty Justice Center, a public-interest law firm, filed a suit on his behalf in California against Facebook, Twitter, President Joe Biden and United States Surgeon General Vivek Murthy for violating his First Amendment right to free speech.
Hart had his social media most recently locked for merely posting an infographic that illustrated the lack of scientific research behind forcing children to wear masks to prevent the spread of COVID.
In fact, much science indicates that kids aren’t at risk and aren’t spreaders. Study after study repeatedly shows that children are safer than vaccinated adults and that the masks people actually wear don’t do much good.
The lawsuit contends that the federal government is “colluding with social media companies to monitor, flag, suspend and delete social media posts it deems ‘misinformation.’”
It can point to White House Press Secretary Jen Psaki’s July remarks that senior White House staff are “in regular touch” with Big Tech platforms regarding posts about COVID. She also said the surgeon general’s office is “flagging problematic posts for Facebook that spread.”
“It’s clear to Americans that what is said at the White House podium isn’t always true, so why do we think it’s acceptable for the government to direct social media companies to censor people on critical issues such as COVID?” Hart asks.
This doesn’t mean he hasn’t posted some dubious stuff on this or any other topic. For sure, the ‘Net is full of loons promoting utter idiocy as supposed fact. But the way to counter misinformation isn’t censorship — and it’s certainly not having the feds lean on social-media firms to do the censoring.
The Post has been targeted repeatedly by social media for solid, factual reporting. We can only think such outrages would get worse if Facebook & Co. start trying to enforce some government version of “the truth.”
https://nypost.com/2021/09/06/federal-government-using-social-media-giants-to-censor-americans/
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