June 2020


Interviewer: So how will this case affect social media, especially when it comes to defamation?

Steven Brown: It’s possible that it could affect social media in multiple ways. One of the direct ways that it’s likely to affect it is that the recognised media outlets that already have an existence – newspaper, television, radio broadcasters – that use social media to try to drive audiences to their websites, TV shows, radio have now run a risk that they could be found liable for defamation because of a comment that a third party has made to a post that they’ve put up that’s otherwise not defamatory.

So they haven’t done anything defamatory themselves, but someone else has made a comment that is defamatory to their article. And they potentially now are considered by the law as having published that comment. One of the three important elements that needs to be established for a matter to be defamatory is publication, and the party that publishes it is liable for it. And what they’ve found is that even though they had nothing to do with these comments, the fact that the comment is made to an article they published, they are deemed to be the publisher of it.

Interviewer: Will this make people more careful on what’s commented on posts?

Steven Brown: What it’s likely to do for media outlets if it goes ahead… This is the decision that’s been made at the New South Wales Court of Appeal level, and I think it’s highly likely that the media outlets will seek leave of the High Court to appeal it there. That will create something that will be binding across the country. If the High Court gives leave… they don’t have to, but it would look like in the circumstances, and this has got such far reaching implications that is likely that they would give leave for it to be heard. It is a fairly new area of the law.

If they did, let’s say that the High Court upholds their decision and says, yep, the New South Wales Court of Appeal was right, and media outlets are publishers of comments that are made to their articles. What it’s likely to do is create, um, a whole lot more obligation on them in regards to how they filter and moderate the content of the comments that are put on there. What often happens is that if it’s really, a whole lot of keyboard warriors that really are putting a whole lot of salacious comments to their article, it actually creates a lot of attention and works quite well for them because it draws audience to their publication and therefore potentially draws audience to their newspaper, online website, TV shows, radio… But what they’ll now have to do is use some of the things that Facebook has got in place that allow for content to be edited, such as specific word-blocking, the profanity filters that they have available, the ability to remove and edit posts, and also the ability to block specific users.

So, if there was someone that became known as a repeat offender in putting potentially defamatory comments to their articles, they could block them as someone that could comment to them. One of the interesting things with Facebook, though, is you can’t completely block comment to it. So you can’t publish something and not allow for comment to be made to it. But, what the courts are saying is you could in effect do it, by having such a vast array of word blocking and profanity filters on there. What happens with word blocking is the comments still get there, but the publisher of the article has a right to then either allow for the rest of the public to see it. So the comment would be seen by the people that are friends with that commenter, and the person that put the article out, but not to the wider audience of the rest of the world.

So there’s a suggestion that they would need to be doing that. The court went down to detail, saying that they’d probably need to employ two full-time and one half-time, part-time person to be able to moderate the volume of content that they advised the court they were putting through there. So it was three different media outlets that had put articles on that had comments made; it’s 10 different comments that were made across those three different media outlets, publications, uh, that are potentially defamatory. The court hasn’t decided yet if they’re defamatory; the whole issue at the moment that’s being looked at is whether or not the media outlets actually published the comment that the third parties made.


Interviewer: Ok well you answered my final question in that question, so thank you very much.

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