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Steven Brown comments on the Dylan Voller defamation case in a radio interview.

Matthew:

Well, the high court handed down a decision today affecting the media and people who post comments on stories on media websites and Facebook pages, and Twitter and social media, whatever it might be, where they’re just leaving comments. That could be you. The media organization, the high court ruled, is responsible for anything defamatory that people put on their page because they’re publishing it in effect. Let’s find out the ramifications of that, what it might ultimately flow into. Could it make its way through your computer, in your home to you? Steven Brown, who is with Lynn & Brown Commercial Lawyers in Perth joins me now. Steven, good evening. Thank you for your time.

Steven Brown:

Thank you for having me.

Matthew:

Now this decision, did it come as a surprise to people who followed the case?

Steven Brown:

No, and as you say it’s been through … This is the third step of the journey for this decision. So, it started in the New South Wales Supreme Court, then went to the Court of Appeal in New South Wales Supreme Court, and then it’s made its way to the high court. And it’s only on a very discrete point, but something that is quite significant to the landscape in Australia and very significant for the large media players and people that use social media to advance their business. So not surprising that it’s gone to this stage and probably the decision considering the very recent to earlier decisions is not of a great surprise to those that have followed it.

Matthew:

All right, so basically this case involves a chap in Darwin who was trying to sue newspaper outlets for comments people had left on those newspapers sites about him. So presumably readers of the paper, people with an opinion on his particular issue. And basically, he’s appealed that all the way to the high court, wanting to sue those media outlets for the defamatory comments left by others.

Steven Brown:

Exactly, correct. So quite unusual. And what’s happened, it’s not a decision that it’s defamatory, but all that’s happened is, a very discrete point’s being taken to the high court at this stage as to whether or not those media outlets were actually the publishers of comments that third parties made to their posts on Facebook.

Matthew:

So for the short term, the onus is then on media companies to either vet everything that people leave in response to a story or an article or whatever the thing is that they’ve posted, either that or not allow any comments at all.

Steven Brown:

That’s correct. And at the time when these articles were published, so the media outlets, use this as a way to effectively try to bring traffic to their websites, they’ll post a headline with a link to the article that then feeds the audience through to their website to read the more substantive article. At this time, Facebook didn’t allow you to completely block comment posts. It allowed you to hide them and then have a moderator look at each of those before they are published. But Facebook has changed its algorithms to now allow for you to completely block any comments being made to articles. But it’s highly unlikely that media outlets will want this because the algorithm of Facebook works, that the more people that comment on a post, the more feeds it gets into, the more publication it gets, the more attention it gets, which is what someone that’s trying to monetize a post is trying to achieve.

Matthew:

Yeah, absolutely. So, all right, so this leaves the media companies at this stage at risk of litigation, should a reader, a listener, a viewer decide they want to defame an individual or a company. But could it ultimately, if somebody is posting under their own name, under their own identity and venting defamatory stuff, essentially could that person also be sued? Is that what ultimately we’re saying here?

Steven Brown:

Well, it’s not decided. One of the interesting things is that in both of the earlier decisions, and then in the high court, it is quite relevant that this was an organisation that was using the posts in a way to generate money. And the posts were considered to be provocative, to try and elicit comments to be made to them that may be of a provocative nature and that they have the resources and ability. In one of the earlier decisions, actually, there was expert evidence given about what it would cost these organizations to actually have someone properly moderate the comment and filter it. And they’d chosen not to do that. And that was considered to be relevant. So, it is yet to be seen and it’s also yet to be tested, some defences that possibly could be brought by the media outlets to the defamation case, whether or not, particularly defence of innocent defamation dissemination, whether that could be relied upon.

Matthew:

All right, all right. I mean, in general terms, it might have nothing to do with this decision today, but in general, terms, if somebody is on Facebook or Twitter and they’re being absolutely vile writing horrible things about an individual or a corporation they don’t like, can they find themselves at risk of legal action?

Steven Brown:

Ah, definitely. That is likely to be defamatory and create the normal course of events that will play out if someone is defying someone. So what we tend to see though, is a lot fewer individuals being sued because of the question mark whether they’ve got the financial resources to result in the person that brings the claim against them, having some recons that it’s going to be worth it going through the protracted court proceedings.

Matthew:

Right.

Steven Brown:

We see a lot more of larger organizations such as media outlets being sued because it’s known that they will have the resources if the case succeeds, to pay out both the substantial legal costs because they’re talking about all of these cases having to be brought in the State Supreme Court. So, costly places to bring litigation and then to have enough money to pay both the recovery of those legal costs, but also a sizeable judgment.

Matthew:

Mm-hmm (affirmative). Interesting. So still, regardless of that, be careful what you say and what you vent on the social media. [Crosstalk 00:07:14]

Steven Brown:

Oh, certainly and there’s a number of cases, yes, that are becoming more and more prevalent of people being sued, individuals being sued for defamatory posts on social media outlets.

Matthew:

Mm-hmm (affirmative). There we go. All right. Well, we’ll see how this changes, if it does in all the media landscape, I suspect it will to some degree, but we’ll wait and see how that unfolds. Appreciate your time tonight, Steven. Thank you.

Steven Brown:

Thank you, Matthew.

Matthew:

Steven Brown from Lynn & Brown Commercial Lawyers. And interesting, the high court decision today, which basically says that media organizations are responsible for comments that people leave on their web pages, their social media. So, the ramifications of that, whether you’ll be able to do so in the future, well, that remains to be seen. We’ll see where it goes in the next few weeks and months.

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