Let’s fix the flaw in Facebook law

Our laws reflect and shape our society, and the tension between the two is inevitable and constant. The trick for a healthy, functioning society, therefore, is for these elements to be roughly in synch. When laws lag the real-world experience of citizens, or vice versa, the result can be distress at best and chaos at worst. Which is why we not only welcome federal Attorney-General Michaelia Cash’s request to the states and territories to address their defamation laws in the wake of the High Court decision on third-party comments on Facebook but also urge her fellow attorneys-general to get on with it.

The High Court decision in September upholding a NSW Supreme Court ruling that media organisations could be sued for comments posted by third parties on their Facebook sites was out of step with the new world of digital publishing. As Senator Cash said on Wednesday, some parts of defamation law no longer are fit for purpose in an age in which the traditional definitions of curation and publication are rendered all but meaningless. The accessibility of the internet as a forum for free speech by anyone who can type has revolutionised our society’s expectations around news, analysis and argument. Media organisations such as our own have developed business models closely linked to sites such as Facebook. At the time of the case involved here, it was not possible for organisations to turn off third-party comments. That facility is now available, but there are huge financial implications for news outlets if forced to filter every comment posted.

The case, in which former Northern Territory youth detainee Dylan Voller is suing Nine Entertainment, News Corp Australia and others, has been remitted to the NSW court to see if media outlets can rely on any defences or immunities under defamation law. But Senator Cash is correct to say there are critical issues to be addressed. The ruling goes beyond media groups and leaves millions of Australians with Facebook pages, not to mention governments, liable for comments posted even without their knowledge. Facebook’s liability is less clear but, as Communications Minister Paul Fletcher hinted at the National Press Club on Wednesday, it’s an area of interest for the attorneys-general.

To push responsibility for third-party defamation on to news outlets defies logic and ignores the realities of the modern world, and only serves to threaten the viability of responsible publishers, who have limited to zero capacity to contain the behaviour of users of the social platforms.