Dylan Voller sues for defamation over Facebook posts

In a world-first legal action, the former Don Dale detainee has triggered a lawsuit against several news sites, including The Australian.

Dylan Voller says media organisations are liable for up to a dozen defamatory comments about that appeared on their Facebook pages. Picture: Emma Murray

A remarkable hearing is underway in the NSW Supreme Court, with three major Australian media organisations challenging a world first legal action, suing them for defamation over comments posted on their social media sites.

The special hearing, presided over by Justice Stephen Rothman, has been triggered by a lawsuit by former Don Dale prisoner Dylan Voller against The Australian, Sky News, The Bolt Report, The Centralian Advocate and former Fairfax Media, now Nine Entertainment Co.

Mr Voller’s statement of claim, filed in the NSW Supreme Court in December 2017, says the media organisations are liable for up to a dozen defamatory comments about Mr Voller that appeared on the publications’ Facebook pages.

The comments refer to allegations that Mr Voller had assaulted a Salvation Army worker who had visited him in the now notorious Don Dale Youth Detention Centre “so severely he was blinded in one eye”. Some commentators also accused Mr Voller of attacking the man because he had failed to buy the young inmate a treat, described variously as chocolate, lollies or a can of Coke.

It is not suggested that either of the incidents described actually occurred, only that the allegations were made by the Facebook commentators.

Opening proceedings today, Justice Rothman assured the phalanx of wigged and gowned barristers at the bar table: “Surprisingly, given my position as a judge of the court, I do know how Facebook works…’

Mr Rothman said the critical question to determined at the hearing was not whether the comments had been made, but whether the media companies could be regarded as the publisher.

He said the situation could be likened to the liability of a local council if graffiti were sprayed on the side of the council’s walls. In that case, he said “You would never suggest it (the graffiti) was published by the council … which may not even be aware of the graffiti.”

Equally, he said, if a sexist remark was written on a chalk board at a local deli, the shop owner would be recognised as the publisher because the “chalkboard is a facility that is provided by the shop owner for others to use.”

If successful, the lawsuit would have profound implications about the future capacity of media organisations to operate on social media.

The media organisations say the lawsuit places them in the impossible position of being held responsible for third party followers who like, share or comment on articles and video excerpts the media post on their Facebook pages and other social media sites.