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Tasmanian Prime Minister Peter Gutwein’s decision not to allow comments on certain Facebook posts is likely just the start of the wider ramifications of a High Court ruling on liability for third-party comments on social media, according to an expert in defamation law.
Earlier this month, Fairfax and News Corp lost an offer in the High Court to evade liability for allegedly defamatory comments posted on their Facebook pages in response to stories about Dylan Voller, including abuse at the center detention for young Don Dale of the Northern Territory led to a commission.
Judgment Five-Two went far beyond simply finding that media companies were responsible for comments made on their Facebook pages, concluding that simply facilitating comments amounted to “participation” in the communication of defamatory material, even though the original poster was unaware of the content. subsequent comments.
The move means people who manage Facebook pages or other social media accounts will have to tightly moderate all comments at all times, and remove potentially libelous content, or turn off comments altogether – a feature Facebook introduced in March.
On Friday, Gutwein announced on his Facebook page that following the judgment, some posts on the page would have comments disabled.
“The recent High Court defamation decision on Facebook determined that the page owner is now legally responsible for user comments on posts,†the post said.
“We know social media is 24/7 media, however our moderation capabilities are not. As a result, there will be changes in the way users can interact with this page in the future. “
University of Sydney Law School defamation expert Professor David Rolph said Gutwein’s decision would likely be the start.
“This is, I think, the consequence of the High Court ruling – to get people to think seriously about what they post and are they encouraging or inviting comment because if you are encouraging or inviting comment , you may be responsible for third party comments, “he said.
He said changes to the defamation law in July, which require notification letters to be sent before legal action, as well as the requirement that those bringing lawsuits must demonstrate the balance of probabilities. that serious damage was suffered as a result of the allegedly defamatory comments. affect cases brought to court. However, Rolph said most would manage the risk for now.
“I just think, especially for organizations and people who are prominent on social media, that it will just be prudent for them to consider their options on how they can manage their definition of risk.”
Neither the Federal Labor Party nor the Greens have so far called on MPs to stop allowing comments on the posts. The Greens have a policy of what is acceptable in comments, but still allow the posting of comments.
The offices of the premiers of New South Wales and the Victorian era have said Nine newspapers they were mulling over the decision and whether or not they would allow comments on social media.
Education Minister Alan Tudge’s Facebook page turned off comments on a post last week where he said he no longer recognizes Melbourne or Victoria, and that “fundamental freedoms†were denied. Comments were closed after receiving over 1000 comments. Tudge’s office did not respond to questions about whether this was related to libel concerns or simply to deal with the high volume of comments.
The prospect of reduced interactions on Facebook posts due to the deletion of comments may deter some politicians from following in Gutwein’s footsteps. Facebook would not comment on the impact that disabling comments might have on the reach of the pages.
Facebook is currently examining the implications of the High Court ruling, and a spokesperson pointed to a statement made in March on limiting comments designed to help pages “feel safe and engage in more meaningful conversations with your people.” community â€.
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After the High Court ruling, the case will return to the lower courts to determine whether Voller was defamed, potential defenses and damages. Rolph said key issues such as liability and whether the comments were defamatory, as well as the defenses media companies can use would also determine the wider impact of the judgment.
“There has been no determination as to whether the posts are in fact libelous. And there has been no ruling on a defense like innocent broadcasting or immunity under the Broadcasting Services Act, â€he said.
Under the Broadcasting Services Act, the case could be declared invalid if it had the effect of declaring media companies, as the host of content on the Internet, responsible for such content when they are not. aware of the content, or if it would require them to monitor the content.
Bauer Media, Dailymail.com Australia and Seven West Media sought to intervene and raise this issue in the original appeal, however, as it was not raised by any of the major parties, it was unable to be decided on appeal.
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