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This is despite the media houses arguing that they cannot screen whatever comments visitors make before those comments go live.
But the court ruled that companies could be considered ‘publishers’ of the third-party comments.
“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,” Justice John Basten said. Basten was sitting with Justice Anthony Meagher and Acting Justice Carolyn Simpson.
Basten’s decision upholds the ruling made in 2019 by Supreme Court Justice Stephen Rothman, who found that, as owners of the page, they have the ability to monitor comments made by the public. He said that each company had the capacity to hide a comment until that comment was approved.
“This would require additional resources. But, at worst, would require the equivalent of 2.5 employees and that would include some work already performed,” Rothman noted in his judgement.
“The evidence also revealed that it was important to the defendants (the media companies) that comments be made available on their public Facebook pages so as to increase interest and thereby increase advertising revenue,” Rothman said.
The implication of the Court of Appeals decision is that publishers around Australia will have to rethink their social media strategy to ensure they can adequately moderate comments that are being made. There is possibly a similar implication for any Facebook page that allows defamatory comments to be published.
Following the ruling on Monday 1 June, Nationwide News, Fairfax Media and Australian News Channel said the country’s defamation law was 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,” they said. “It is Facebook that must be held responsible for content posted by its users, not media companies.”
The statement continues: “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.
“We are considering the judgement carefully with a view to seeking special leave to appeal to the High Court of Australia. We also reiterate our calls for urgent law reform in this area.”
The media companies being sued for defamation by ex-NT youth detainee Dylan Voller. Voller, whose mistreatment in the Don Dale Youth Detention Centre sparked a 2016 royal commission, is seeking damages for 10 comments made about him by members of the public on Facebook posts on the pages of the Sydney Morning Herald, the Australian, the Centralian Advocate, Sky News Australia and the Bolt Report.