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Radio interview with Steven Brown on Curtin FM looking at defematory comments being left on Facebook and media companies can now be found liable.

Jenny:

As I mentioned earlier, legislation was recently passed making it a law that if a company or network within their platform invite unsolicited comments from the public and they are offensive in any way, the company are held responsible and therefore can face heavy penalties. Joining me now and joining us right now, is commercial lawyer, Mr Steven Brown, he deals with disputes and transactions and he’s with Lynn & Brown Lawyers. Good afternoon to you, Steven. Hi Steven. Thank you for joining us. Did this come as a bit of a shock, do you think, this legislation being passed?

Steven Brown:

Well, it’s a decision of the High Court, Jenny, that was passed down on the 8th of September, 2021 that began in the New South Wales Supreme Court back in 2019. And then in 2020, went to the New South Wales Court of Appeals. So we’ve been watching it for a couple of years now. When the initial judgment was handed down in 2019, it was a bit of a surprise, but the concern is over the inability of people that are defamed to find the people that make the comments and the incitement by some of the posts that elicit these comments that are defamatory.

Jenny:

Yeah, I think it’s all been a very big learning experience, I think, for everybody with social media. And of course, it has definitely proven to be very defamatory to so many people. And I can’t imagine the implications here for these networks and big corporations or people that do invite the comment bracket at the bottom of their information there, how they got to deal with this. Do they cut it off completely, perhaps?

Steven Brown:

Yeah. It’s very interesting Jenny to see in the way in which this is going to play out in the Australian landscape for the big social media platforms, because they thrive on the ability for people to make comments and for people to interact with it is what, one of the things that makes it very attractive. And now it’s not just the media companies that are exposed to potential defamation, but any company, business, an influencer that uses these platforms effectively to gain some business or advantage are exposing themselves to potential defamation claims.

Jenny:

Yeah, that is the very interesting point to this as to where it’s going to go and how far it is going to go. Because, just on the social platform, you’ve got people giving comments quite horrible, very bad actually about personal things. So it could be effective to people that ask for comments. If they’ve got a voice to be heard something to follow. Do you think that that could be the case?

Steven Brown:

Yeah. So one of the things that the court looked at very closely with these decisions is the media companies used the Facebook posts to drive traffic to their websites, and that allowed for them to generate revenue through advertising because of the statistics of the volume of people that it was driving to their websites. So now Facebook has changed since this originally occurred in 2016 and 2017, these posts were made, but now you can completely block comments being made to a Facebook post, but at the time you could not do that. You could moderate them. So you could go in and remove them or remove parts of the comments. And you could also set up filters so that if certain words appear in a comment that it wouldn’t be shown to the broader public, only to the Facebook user, their friends and the actual author of the post. And they could then go in and either prevent it from being seen by the public or amend it.

Jenny:

When you talk about businesses, for example, that want people to put favourable comments, whether it be a restaurant or retail outlet or something that of course opens it up for people to be rather derogatory as well. So would these restaurants not allow comments perhaps to say the meal was good or the meal was bad? They can ruin their business.

Steven Brown:

Yeah. So looking at things like Google reviews, that is an area where we’ve seen in practice, a lot of defamation occurring. There are some changes in foot in Australia, in defamation law. We’ve seen stage one of them go through in most of the states of Australia, Western Australia, not quite there yet, but it is a national process. So WA will enact this law soon. But the second stage is the one that’s more interesting for the social platforms that they’re going to be looking at. Are Facebook, are Google, are these large social media companies liable for what third parties post through their sites?

Jenny:

Goodness. That’s an open book, isn’t it?

Steven Brown:

Sure is.

Jenny:

Steven, you deal with disputes and I’m sure you’ve seen it all. And I can only predict that perhaps the way this is heading, that you’re going to see a lot more areas that perhaps you never thought you’d have to face.

Steven Brown:

Yeah. Certainly, when reading the decision and thinking about the possible implications of it, all businesses now have to be extremely careful with how they deal with posting on social media. Now the large companies, and this is one of the things that the case looked at is they’ve got the ability to fund someone, to constantly be supervising their posts and the comments being made. But if you are running a local gardening business and you say, for example, post some photos of some gardens you’ve done up in a local area and someone goes and puts a comment saying, I know that street such and such a pedophile lives on that street. You, as the gardening company that posted the article, may be liable for this potentially defamatory comment that was made complete unconnected to your post.

Jenny:

Yes. There are so many areas of the law here now that are really going to have to be looked at carefully. Because like you say, the legislation was passed, I guess, for the companies to be responsible because you can’t track down these people that do make these comments.

Steven Brown:

Yeah, that’s right. It was really very relevant that the companies are using it to derive income, but the actual basis for the decision is, at this stage, all that’s been determined by the high court is that those media companies published the defamatory comment. So it hasn’t been determined that it was actually defamatory. So the matter’s going back to the New South Wales Supreme Court where there are several potential defences that could be brought by the media companies, will be reviewed and also be determined whether the actual comments, were defamatory.

Jenny:

The situation with saying it’s open for comment, whatever the discussion might be, whether it’s a news story or what’s going on around Australia at the moment with the rioting and so forth. If you have a comment about that, a lot of people have definite ideas about things like that, but I’m just wondering really, when you look at the people that put out these stories, like for example, it’s a news story and people comment about it. It happened so quickly, these comments coming up online, is it a situation where they’re going to have to stop allowing any comments? Do you think to protect themselves? Or did you suggest that they would have somebody that would monitor, that have to be very quick? Wouldn’t they?

Steven Brown:

Yeah. So interesting, I just went on Facebook last night and had a look. Two of the publications that were dealt with in this decision was the Sydney Morning Herald in the Australian. And they’re still allowing on Facebook, as of last night, comments to be posted to articles, they’re posting Facebook. So they haven’t taken the step of blocking all comments. And that’s because the Facebook algorithms would prevent that, that post from going through a lot of feed and getting the exposure it otherwise gets if people comment and interact and like, and share the post.

Jenny:

I’m just wondering who are going to come and see people like yourself, for example, Steven, to say “A derogatory remark was made about me or my opinion”. Where do they stand? Do they take that network or company to court?

Steven Brown:

That’s what I believe we’re likely to see. The high court decided at five-to-two and in one of the minority judgements, one of the judges tried to draw to limit it, to create a nexus between the comment and the post. So if the comment was about the post, then it would be defamatory. But he used an example where arguably on the decision, as it now stands by the majority, a media company could post a somewhat mundane article about the weather and someone could get on there and make a comment that is defamatory of someone that’s completely unrelated to the weather and the media company would still be liable publishing that defamatory comment.

Jenny:

So when do you think all this will take place? When are people going to shut down the opportunity for people to comment? Cause we’ve got some pretty horrible people out there at the moment with comments.

Steven Brown:

We certainly do. One of the interesting things was when one of the comments was published, something like 50 odd percent of that media company’s traffic to their website that day came from Facebook posts. So we know what’s going on there now in digital advertising that so many companies are deriving revenue that is driven to them by their digital marketing. And so it’s a very tricky situation because people won’t want to cut off their revenue they’re also now taking a significant risk.

Jenny:

This is the interesting thing in the future. We didn’t know how big this monster was going to be, social media. So it’s a matter of looking at it very carefully for everyone concerned because people commit suicide when terrible things are said about them. It’s really that serious.

Steven Brown:

Yeah. It certainly is. At the push of a button, someone can communicate with the world nowadays and so this is something we’re not used to and the law is a very slowly changing beast, but we’re dealing with technology and methods of communication that are rapidly evolving.

Jenny:

Very true. You are going to be a very busy man, Steven.

Steven Brown:

Let’s hope that some sense steps in and we’ve got the legislators’ ability to look at making some changes, but it’s very difficult. Cause as you say, there are people getting very hurt by these posts. We also enjoy a lot of benefits of the digital media that we’re being exposed to in today’s society. But we also have to protect people.

Jenny:

They sure do. And that’s exactly what you’re doing. Steven, thank you very much indeed for your valuable time. Thank you very much for joining us.

Steven Brown:

Thank you, Jenny.

Jenny:

Thank you. That was Steven Brown, a commercial lawyer with Lynn & Brown Lawyers.

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