Attorney-General Michaelia Cash pushes states to fix defamation laws after Voller verdict

Michaelia Cash backs urgent defamation reforms after a court ruling exposed governments and publishers over social media comments by third parties.

Attorney-General Michaelia Cash. Picture: Martin Ollman

Attorney-General Michaelia Cash is pushing the states to make urgent reforms to the nation’s defamation laws to reverse a High Court ruling that has exposed governments and publishers to legal action over the offensive ­social media comments of third parties.

Senator Cash has written to the state and territory attorneys-general this week to urge them to take a nationally consistent ­approach to defamation reform, arguing the current laws are “not fit for purpose’’.

The High Court in September ruled publishers could be liable for defamatory posts posted by commentators on their social media pages – even ones they do not know are there – and opened the way for a complaint against major media organisations from former Northern Territory youth detainee Dylan Voller. Senator Cash warns that more needs to be done to balance free speech and “unfiltered” social media commentary in the digital age.

A Council of Attorneys-General discussion paper has given the law officers a blueprint for changes to the defamation laws.

The options could effectively reverse the Voller case by providing a default defamation defence that digital platforms and Facebook page administrators are not primary distributors of material posted by third parties.

Publishers and Facebook page administrators could also be given a defence protecting them from defamation proceedings arising from posts made by third parties without their consent or knowledge. Other options to be considered by the states include giving the courts powers to remove defamatory material before a trial. This would likely to be resisted by publishers.

Tech companies would likely oppose an option of providing power to the courts to make tech platforms identify originators or third party material.

While Senator Cash is keen to push defamation reform at the next meeting of attorneys-general early next month, the states will ultimately determine if significant changes are made.

Federal government sources said on Wednesday that the commonwealth itself was taking advice on whether the Voller decision leaves it vulnerable to legal action over comments posted on its many social media pages.

The push to reform defamation in the digital arena comes amid worldwide efforts to rein in tech giants like Facebook and Google. Communications Minister Paul Fletcher says the community now expects tech giants to take more responsibility for harm caused online.

Senator Cash said her state and territory counterparts must consider urgent reform due to the “considerable liability” the Voller ruling has thrown up.

“It is clear that parts of defamation law are not fit-for-purpose. The Voller case presents a considerable liability for all publishers that will only lead to more court action. Reform is critical,” she told The Australian.

“We need to balance freedom of speech with the protection of reputations in a digital era where unfiltered commentary has been amplified by social media.

“There are plenty of solutions on the table, and I look forward to working with my state and territory colleagues to reach them.” The Voller case has now prompted the Tasmanian government to shut off comments from their social media sites and international news channel CNN to block Australians from its Facebook page.

The defamation reform push comes as Facebook struggles to deal with a major whistleblowing scandal about how it deals with hateful and derogatory comments online.

Former Facebook employee Frances Haugen testified to the US congress on Tuesday over internal documents showing harm caused by the company’s products, from teenagers’ mental-health problems to poisoned political debates.

The Morrison government has taken a hard-line approach on the tech titans and the regulation of the internet, including leading a global push to restrict the sharing of violence and extremist propaganda online sparked by the 2019 Christchurch massacre.

Josh Frydenberg last year introduced a world-first media bargaining code to ensure media companies received fairer payment for the sharing of their content on major websites.

Mr Fletcher on Wednesday said he was not surprised by the allegations levelled against Facebook in the US and that the Morrison government would hold tech titans to greater account.

The High Court decision in September arose out of a case involving Mr Voller – who came to public attention in 2016 when the ABC’s Four Corners program aired footage of him being forced to wear a spit hood in the NT’s Don Dale Youth Detention Centre – and some of the country’s biggest media companies.

Mr Voller is seeking damages for allegedly defamatory remarks left on media companies’ Facebook pages below posts linking to stories written about him in 2016 and 2017. The media companies, which include Nine Entertainment and News Corp Australia (publisher of The Australian), say they were not aware of the remarks until Mr Voller launched legal action, and Facebook did not give them the ability to switch off the comments at that time.