‘Reform is overdue’: Facebook page admin fights defamation ruling

The administrator of a community Facebook page has called for urgent defamation reform as he fights a court decision ordering him to pay $205,000 in damages to a Melbourne property developer over comments posted by forum visitors.

Cameron Howe founded the Carrum & Patterson Lakes Forum for residents on Facebook in 2010, when he was 16, and said his bid to overturn the ruling was “of national interest” because it affected “everyday Australians”.

Cameron Howe (inset) founded the Carrum and Patterson Lakes Forum in 2010 when he was 16.

Howe, who was elected in 2020 to Melbourne’s Kingston Council, received a letter in December 2019 from lawyers for Sam Zuchowski, managing director of developer Cavendish Properties, about a series of 10 allegedly defamatory comments posted by forum users.

After receiving the letter, Howe acted swiftly to block access to the forum temporarily and to delete the comments. Zuchowski did not allege that Howe’s own posts were defamatory.

In February 2020, Zuchowski launched defamation proceedings against Howe over the comments, which were posted between February and December 2019 and ranged from “$$$ talks” to “whose pockets are being lined at Kingston”.

In a decision in September, the Victorian County Court ruled that Howe, as administrator of the page, was a publisher of the comments. Judge Peter Lauritsen found the comments conveyed a range of defamatory meanings, including that Zuchowski was “acting in a corrupt manner”.

The developer was not named in most of the comments, but Lauritsen was satisfied “there were many tens, perhaps hundreds” of people who reasonably believed the comments referred to him.

Lauritsen said it was “seriously defamatory to describe a property developer as corrupt” and Zuchowski had “enjoyed an excellent reputation” prior to the comments. He ordered Howe to pay $205,000 in damages.

The court heard Zuchowski reached a settlement in January 2020 with the authors of one of the comments. They agreed to delete the comment, post an apology and pay damages of $45,000.

The states and territories have given their in-principle support to changes to defamation law aimed at shielding Facebook page administrators and other “internet intermediaries” from defamation lawsuits over third-party content. However, there will be no change until at least January 1, 2024.

Under the reform proposal, social media page administrators would be able to rely on a reworked defence of “innocent dissemination” to fend off lawsuits over third-party comments, but only if they set up complaints processes and took reasonable steps within seven days of a complaint to delete or prevent access to allegedly defamatory material.

Howe told this masthead that “social media defamation reform is overdue, particularly on the question of liability for third-party comments on Facebook, and our appeal impacting everyday Australians is of national interest”.

In documents filed in the Victorian Court of Appeal, Howe is seeking leave to appeal against the County Court decision.

His lawyers identify a range of appeal grounds, including arguing that the judge erred in finding that the existing defence of innocent dissemination did not apply in the circumstances.

His lawyers also say he was protected by the Commonwealth Broadcasting Services Act, which exempts “internet content hosts” from legal responsibility for third parties’ posts or uploads where they were “not aware of the nature of the internet content”.

They say the judge erred in concluding there was evidence to support a finding Howe knew about the posts.

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