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High Court dims public debate with its judgment on social media

Throughout its almost 170-year history, The Age has faced having to defend in court articles we publish in our newspapers. In modern times, the same has also applied to our websites. However, a judgment by the High Court on Tuesday has made clear we can also be liable for things we had no role in writing, editing or putting into the public sphere.

The court found that several news outlets should be considered the publishers of allegedly defamatory comments that were added by third parties to Facebook posts about former Northern Territory youth detainee Dylan Voller.

The High Court decision places a significant burden on the media.

The High Court decision places a significant burden on the media.Credit:Alex Ellinghausen

At the time the comments were made, Facebook did not enable operators of public pages to switch them off. The NSW Supreme Court suggested in 2019 instead that we use the “keyword filter”, blocking out comments using common words such as “and”, “the” and “she”, then reinstating only those that were not offensive – an impossibly onerous task.

In response to that judgment, the only choice The Age felt it had was to vacate the field, leaving contentious articles that were clearly in the public interest off Facebook entirely because of the risk that they would attract defamatory comments. The effect was to leave the social media platforms, already derided for a lack of quality information, even more at the mercy of the misinformation squad – the QAnon types, the Russian bots and the ivermectin merchants – or anybody else with an axe to grind and a budget to spend. That was rectified in March and media outlets can now opt to switch off the comments on individual posts.

But on Tuesday the High Court said media outlets were publishers because they “encouraged” and “facilitated” comments by setting up public “electronic bulletin boards”.

The judgment places a significant burden on the news media. The Age can now be sued over any one of the thousands of comments by readers under each of the 50 or so articles it publishes on its Facebook page every day. Moderating this exponentially growing anthill in its entirety, as the court seems to recommend, is impossible.

In fact, the judgment’s impact extends much wider than the media. Any community organisation, company or individual risks being sued for comments posted by third parties on their Facebook pages or other interactive social media.

Despite the heightened risk, The Age has made only modest changes to its social media policies. It disables comments on some posts because it wants to maintain the vital connection with readers through social media and considers its role in making accurate information widely available more important than ever. Some other organisations, which lack The Age’s resources, may decide to turn off comments on their Facebook pages completely because of the risk they will be sued for comments made by random users.

In many cases, it may be possible to mount a defence, for example, on the grounds of “innocent dissemination”. The publisher of the Facebook post would have to show they could not reasonably have been aware of the comment and took appropriate steps to take it down when they found out.

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