We can take a glass-half-full or a glass-half-empty approach to the decision by Australia’s highest court making anyone with a Facebook page liable for any comments others post on it.
The judgement caused great wailing and gnashing of teeth in media as far afield as Ireland and India and not simply because it opened the way for a youth detention centre inmate to sue the Australia’s biggest news groups over things they didn’t say. As Harvard University’s Nieman Lab put it: “[It] makes publishers legally responsible for every idiot Facebook user who leaves a comment.”
That is just a little bit scary, but let’s start with the optimistic view.
It may be a signal to everyone but the trolls that it is time to clean up social media and insist on a level of responsibility and restraint that is currently almost entirely absent. If trolls can no longer find a home in social media read by ordinary people, they may be forced to retreat to their cold Nordic mountains and caves (also known as fringe platforms where they will only be talking to themselves).
It may also spell an end to the anonymity that is the refuge of cowards who revel in the lack of accountability that it affords. If everyone is required to put their name to what they say – and provide proof of identity before being allowed to post – their comments might be modified. That would be particularly the case if they were opening themselves to legal action by a ‘publisher’ seeking to recover damages and costs in defamation proceedings.
Why should the buck stop with the creator of the Facebook page? The decision may be capable of being extended to the creators of Facebook and its equivalents. After all, if liability moves up from a comment poster to the Facebook page creator, why not keep going and extend it to the creator of the platform. God knows, it’s time for Zuckerberg to take responsibility for what he built.
And, finally, it will stop news sites following an ‘anything goes’ approach to comments that invariably diminishes the quality of debate and introduces tangential discussions that take the focus away from the topic.
Now let’s gaze into that half-empty glass.
First, the Australian ruling criticises, rejects and may yet undermine a New Zealand Court of Appeal decision that took an almost diametrically opposite view. Murray v Wishart in 2014 found that the creator of a Facebook page could not be held responsible for third party comments unless he knew those comments were on the Facebook page and failed to remove them within a reasonable time. The phrase the Court of Appeal used as “actual knowledge”. The assumption here was that the comments were recognisable as potentially libellous.
The Australian High Court said the reasoning “does not reflect the common law of Australia” and the New Zealand case disregarded important precedents. However, two judges of the Australian court dissented and one, Justice Simon Steward, drew on the New Zealand case to illustrate that “merely allowing third-party access to one’s Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all the third-party comments posted thereafter.”
Nonetheless, the judgement of the majority stands and will have implications well beyond the Australian media companies being sued. The Melbourne office of law practice MinterEllison released a commentary on Thursday that said in part: “The High Court’s decision affects anyone who runs a social media page or who publishes a post on social media. The High Court’s interpretation of what ‘publication’ means is broad enough to apply to all hosts of pages across Facebook, Instagram, Twitter and other social media platforms.”
In New Zealand, Simpson Grierson issued its own commentary, in which it expressed the belief that our Court of Appeal decision would continue to protect this country’s Facebook page operators against unwitting third party posts but it added a cautious rider: “The decision in Fairfax v Voller is a timely reminder for organisations with social media pages: Continue to monitor comments on your social media accounts; and if a complaint is made about defamatory content, escalate, investigate, and act promptly.”
A commentary by another New Zealand law practice, Chapman Tripp, states that the Australian decision should not supersede the New Zealand Court of Appeal ruling or freedom of expression rights under our Bill of Rights Act but does not rule it out entirely. The commentary said: “Both Australia’s and New Zealand’s defamation laws are based on the common law. As a result, the Voller decision could impact the New Zealand position. Indeed, the door was left open to this in Murray – where the Court of Appeal recognised that decisions about liability of internet hosts and platforms were highly-fact dependent.”
Murray v Wishart may continue to provide a measure of protection but the shiver has already gone down the spine. There is no doubt that the Voller case will have a chilling effect here. Even before the appeal hearing it had led social media platforms like Facebook to allow users to turn off the comment field that had previously been mandatory.
The Stuff Facebook page has already availed itself of that option and denies followers the opportunity to comment directly. If you have a burning desire to enlighten the world with your views on a particular subject, you must share the item with your friends and comment from your own page. You, then, become the publisher and Stuff is one-remove from the action. I expect other news organisations will follow Stuff’s lead if their lawyers offer a legal opinion that the Australian decision could have implication here.
The Nieman Lab worries that the decision will be affirmed and spread through other jurisdictions. Joshua Benton, the author of its commentary last week, stated that “Pandora’s box isn’t big enough to hold all the potential implications”. He summed up the scale of the problem, using the example of larger news organisations’ Facebook pages.
“If a professional publisher has to evaluate the truth level of every single Facebook comment to the same standards as their journalism — and it faces multi-million-dollar liability every time they get it wrong — in what universe is digital publishing even possible?”
Chris Merritt, a commentator in The Australian, went further and said the High Court ruling “has exposed individuals and community groups with Facebook pages to an unknown potential liability for damages inflicted by online trolls”.
Some publishers could decide that even with no comment field, the use of social media carries too high a risk. Imagine if the ruling extended to comments on news stories that had been shared. The effect of a withdrawal from social media could have dire consequences.
Let’s use the United States as an example. Research from the Pew Center indicates that about half of Americans get at least some news from social media and a third have Facebook as their main source. Take that away and many will simply not access traditional news sources at all, severely limiting the throwback to news websites. And those users would lose a vital source of verified information while continuing to have access to sources of disinformation and partisanship.
Wholesale use of the comment ‘off’ switch would also inhibit legitimate and socially constructive discourse. Not all comments are inane drivel or hate mail. A significant element of the democratising effect of social media could be lost. Tom Standage, author of Writing on the Wall: Social media, the first 2000 years points out we’ve been using it since the Romans started scrawling graffiti on walls (more than 11,000 items have been preserved on the walls of Pompeii) and “cast light on the everyday lives and social interactions of Romans of every class”. He concludes by saying that the rebirth of social media in the Internet age represents a profound shift – “and a return, in many respects, to the way things used to be”. If the Australian ruling has a chilling effect on news media, it will sooner or later also extend to the more useful elements of social media.
Undoubtedly driven by self-interest, News Corp Australia has called for a law change to head off the High Court at the pass. Its executive chairman, Michael Miller, said the ruling highlighted the need for urgent legislative reform, “and I call on Australia’s attorneys-general to address this anomaly and bring Australian law into line with comparable Western democracies”. He has a point. The High Court is at odds with approaches elsewhere that give a measure of protection. The New Zealand ruling is matched by a similar British provision that protects against defamation if the publisher was unaware of its existence.
Unfortunately there is a certain attraction in the stance taken by the Australian court. Most litigants would be on a hiding to nothing if they tried to pursue online trolls only to find the perpetrator was an impecunious nonentity who spent his days creating online poison while sitting in his underwear. Things would be very different, however, if lawyers for the aggrieved party were able to target a news media organisation that could afford to pay damages. Let the writs fly.
In all likelihood, it would have the additional attraction of placing the respondent in the same legal jurisdiction as the plaintiff. That is much easier to deal with than the likes of Facebook which is adept that playing jurisdictional cat-and-mouse.
And therein lies another negative aspect of the ruling. Why should Facebook and its ilk be handed a hospital pass that can be thrown to media organisations that are already being exploited through the appropriation of news content that attracts advertising for the platform owner? It is yet another opportunity for social media platforms to shift responsibility onto the shoulders of others or disavow any responsibility at all.
The ruling plays into the hands of Facebook, Twitter and their kind by reinforcing – outside the United States – the notion that the social media operator is simply a common carrier like your phone service provider. Within the United States, they claim protection under Section 230 of the US federal Communications Decency Act which states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. It isn’t much of a leap to characterise the High Court targeting of the Facebook page owner as reflecting just that sentiment. It’s a step backwards when even in the United States that common carrier status is being questioned.
The High Court seems blind to the unintended consequences of its majority decision. The dissenters were not. Justice Steward – supported by fellow Justice James Edelman – left no doubt over the consequences: “…merely allowing third-party access to one’s Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all the third-party comments posted thereafter. Were it not so, all Facebook page owners, whether public or private, would be publishers of third-party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredicted.”
That spells jeopardy with a very large capital J. The Voller defamation proceedings will take their own course but, unless a way is found to undo the wider impact of the decision, there is danger of it sparking a multitude of cases and taking ground in other jurisdictions. If that happens, Facebook page owners might err on the safe side, go to ‘settings’, and push the ‘delete account’ button.
To founder and publisher Duncan Greive and the team at The Spinoff for reaching the milestone of seven years online.
In a letter to supporters, Greive said:
Looking back today, I love the audacity of it. The way we turned the low stakes into an advantage, and an audience found us despite our best efforts, embracing us as we were: having fun ﬁguring it out as we went. That still feels like such a critical part of who we are as an organisation, and of our relationship with you, our audience. That sense of closeness, of listening to you as well as talking to you, has helped shape us in incalculable ways.
The Spinoff has been joined by a number of worthwhile news start-ups over the past seven years but those sentiments mark out its unique place in the media landscape.