High Court Facebook defamation ruling should worry us all
First published in The Examiner 19/10/2021
The law. It is an ass, according to an old saying, usually employed to give expression to our frustrations when we don’t or can’t understand its ways.
As someone who enjoyed the practice of law in a former life, the law still holds a deep and profound interest and fascination. High Court decisions in particular because from them there is no appeal. The only way around its pronouncements are changes to the legislated law of the country via the Parliament or the people if it’s a Constitutional issue.
Our High Court judges are quality individuals tasked with onerous responsibilities. Theirs is the final say on matters judicial. There’s no further appeal.
Sometimes they get it resoundingly right, as in the unanimous 7-0 Pell decision, teaching everyone the basics of criminal law and the test of beyond reasonable doubt, which protects us all.
But then there is the recent Voller Case, a 5-2 decision, which held that the owners and operators of Facebook commentary pages are responsible for defamatory comments posted by third parties. Being perplexed at such a determination is not unreasonable.
Readers may recall that Voller was an inmate of the former Don Dale Youth Detention Centre in the Northern Territory. Treatment of its clients became a hot issue and as is the media’s right and want, stories were published, including online. The stories were not defamatory. However, being online, readers could leave comments and did so – some allegedly defamatory. Whether or not the comments are defamatory is still to be determined by the Courts. The case before the High Court revolved around the responsibility of the publisher of those comments and whether hosting a Facebook post that allows for public comment could be deemed to be a publisher of those comments and therefore be held liable.
The Court held that the creation of a public Facebook page and the posting of content on that page facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, even if the page administrator did not know it was there or took steps to remove the potentially defamatory comments.
One assumes this finding applies to all public Facebook pages and one wonders how this is fair or reasonable given the owner has not exercised any judgement or decision to publish. If ownership of the site clothes the owner of full responsibility for all published comments, it begs the question of whether the pinning of a defamatory statement to a community notice board could be similarly deemed the responsibility of the owner of the notice board because it encourages the placement of public notices. The local council notice board, the CWA’s, the football club’s or the local church’s noticeboards could all possibly end up being responsible for things being pinned to them, completely unbeknown and unsupported by the organisation.
The potential ramifications of the Voller finding could spawn a litigious minefield. How long might a well-meaning Facebook page owner have to delete a potentially defamatory comment by another before they are vulnerable? Would it be immediately, 10 minutes, 1 hour perhaps? Given the ruling, one suspects immediately.
Public Facebook pages are slowly having their public comment sections blocked or taken down for fear of the lurking defamer, whether its community pages promoting local news, the Premier’s page or even CNN’s Australian Facebook page. Not a good or healthy outcome for a vibrant democracy with participants seeking community feedback and input.
As an aside, our excellent judiciary exercising the same sworn duties of office, hearing the same evidence and applying the same law will often come to split decisions, as in this case, five-two. Specifics of the case aside, it should remind us all that men and women of good faith can come to differing conclusions on the same evidence. It doesn’t necessarily mean they are good or evil – they just honestly come to different conclusions. As a society, we would do well to remember that in our discourse.
But back to the matter at hand. The Parliament must legislate to overturn this decision while the companies engaged in hosting social media platforms should ensure that fake accounts providing anonymity to the bully, abuser or defamer are not allowed. The de-platforming of an anonymous bully, abuser or defamer may be a more worthwhile activity than de-platforming people with whom the platform operators disagree. Their eagerness to de-platform a former US President but allow the anonymous bully to go free exposes an unfortunate set of priorities.
All said and done, we are well served by our judicial system, but I trust our Parliament will clean up the Facebook fiasco.