Dylan Voller: Media companies lose Facebook defamation ruling

A court ruling has paved the way for anyone with a Facebook page to be sued over comments left by others, say media companies.

Dylan Voller. Picture: Tertius Pickard.

A court ruling has paved the way for anyone with a Facebook page — including businesses, politicians and the courts — to be sued over defamatory comments left by others, a coalition of the ­nation’s largest media companies said.

The judgment, made in the NSW Court of Appeal on Monday, came after The Australian, The Sydney Morning Herald, Centralian Advocate and Sky News Australia tried to overturn a NSW Supreme Court ruling in June that found the organisations were the responsible “publishers” of all public posts on their Facebook pages.

The ruling followed a preliminary skirmish in a world-first defamation action against the media outlets by Dylan Voller, a former inmate of the Don Dale Youth Detention Centre in the Northern Territory, over 10 allegedly defamatory comments posted by third parties on their Facebook pages. Voller, whose abuse at the centre made international headlines and sparked a royal commission in 2016, says the posts included claims he “savagely” ­assaulted a Salvation Army worker who visited him in detention, leaving him “blinded in one eye and deaf in one ear”.

The media organisations argued that they were unaware of the comments and Voller did not ask for them to be taken down before launching defamation proceedings in the NSW ­Supreme Court.

The NSW Court of Appeal dismissed the appeal on Monday, finding the media companies set out to “encourage and facilitate” reader comments on their Facebook pages and were therefore responsible for any defamatory content.

The judges said even though the media companies had “promptly removed” the comments about Voller once they were alerted to them, that was ‘‘immaterial’’ because they had invited “the third party comments from the outset’’. They also found media companies had “sufficient control over the platform to be able to delete postings when they became aware they were defamatory”.

News Corp Australia, Nine and the Australian News Channel are considering an appeal in the High Court. The companies said the judgment demonstrated Australian defamation law was ‘‘completely out of step with the realities of publishing in the digital age” and how Australians consumed news. They said it also failed to recognise the extent to which Facebook was responsible for the content posted by users and its control over the platform.

“The decision fails to acknowledge it is Facebook that controls its platform, including that Facebook gives media companies no ability to turn off comments on their pages,” the statement said.

Lawyer Peter Bartlett said the judgment was “troubling” because “even the most proactive moderation approaches will not necessarily protect them”.

He said Australia should look to Britain and New Zealand, where the liability of a media company was assessed on whether they had “actual knowledge” of any defamatory posts.