By Bronwyn Howell
In February, Australia led the world with its competition-based law requiring Facebook and Google to reach a compensation agreement with media firms regarding the use of copyrighted news material on social media. While the ensuing stoush resulted in Facebook “defriending” Australia for a day — along with acrimonious bargaining in the public domain as Australia’s media giants faced off with the online behemoths — agreements that defanged the issue were ultimately reached. While the level of payments remains mostly undisclosed, major news media firms such as Seven West Media (covering 21 publications) and News Corp (which owns numerous publications along with multimedia platforms news.com.au and Sky News Australia) quickly came to terms with Facebook and Google that satisfied the Australian Competition and Consumer Commission (the regulatory body at hand).
However, a High Court of Australia ruling last month has released a proverbial cat among Australia’s news media pigeons that has ruffled more than a few feathers. As part of a long-running defamation case, the court has ruled that news media companies in Australia can be held responsible for comments left on their social media pages by members of the public.
The case concerns photographs of a young Australian, Dylan Voller, being restrained at a youth detention center. The associated publicity led to a Royal Commission inquiry into conditions at such centers and a defamation case brought by Voller against news media outlets that posted stories about the incident on Facebook. Voller argued that third-party comments made on the news outlets’ Facebook pages amounted to publication by the news media companies that posted the stories, and therefore they were liable for the subset of allegedly defamatory comments left there. Notably, Voller sued the news publishers and not those individuals making the allegedly defamatory comments.
While the issue of whether the comments in question were defamatory is yet to be settled, the High Court ruled 5–2 in Voller’s favor in relation to the news media companies’ responsibilities. In earlier cases, the Supreme Court of New South Wales and the New South Wales Court of Appeal reached similar conclusions.
The High Court ruling, although contentious in legal circles, appears to put to rest any questions about responsibility for Australian social media content. While the case relates to Facebook, the implications are not Facebook specific: They are huge and apply to all social media sites, including Twitter and Instagram. The person or firm responsible for posting a social media page or site is accountable for any content appearing on it. This accountability holds true even if said content is unsolicited or posted by people with whom the individual or firm has no relationship, over whose posts the individual or firm lacks formal control, and about which the original poster may be unaware. Any user of a social media site, it seems, is now deemed the publisher of any content appearing on posts they initiate — namely comments. This resembles the liability traditional media firms have in many jurisdictions for comments posted by third parties on their own publications and hosted websites.
Two consequences immediately spring to mind.
First, this obligation threatens the very purpose for which social media was developed: to allow individuals connected via digital platforms to share thoughts with one another. It was never envisaged that the original poster should be required to constantly edit and remove comments. The only way to safely eliminate risk is to turn off all comments on a post, removing social engagement and replacing it with a one-way broadcast. Somewhat ironically, at the time in question, Facebook explicitly prevented posters from shutting off comments, although this feature (also available on Instagram) was subsequently added. Twitter, by contrast, allows posters to restrict comments to certain people.
Second, the Australian ruling stands contrary to calls in other jurisdictions for the social media platforms themselves, rather than the users, to be held legally accountable for mediating and censoring the content appearing on their sites. The Christchurch Call, for example, focuses on social media platforms managing potentially infringing content, not the users posting it. Likewise, the United States debate focuses on the extent to which platforms, not users, assume responsibility for censorship and removing objectionable material.
On one hand, the Australian ruling appears to be a win for social media platforms in the censorship debate, and Australia seemingly stands alone in this regard. So far, the inconsistencies with the Christchurch Call aspirations (of which Australia is a signatory) do not appear to have been recognized. The ruling appears to diminish platforms’ responsibility for algorithmic promulgation of offending content, placing responsibility for it onto the poster instead of the platform that hosts the content. On the other hand, the ruling still challenges the fundamental purpose for social media platforms’ existence.
Once again, Australia appears to be the place to watch as the social media content debate develops.