By: Bradley Bostwick
If you have ever wondered who can be held liable for comments on a Facebook post, the High Court of Australia just answered this question; but not the way you might expect. Australia’s High Court recently held that media companies in Australia can be held liable for the comments of other Facebook users posted on their articles. The High Court dismissed an argument brought by three major news organizations arguing that they could not be held responsible for third-party comments. The court reasoned that the companies facilitate, encourage, and thereby assist in posting of comments by third parties, rendering them as publishers of those comments. This ruling could have a substantial impact on media outlet companies not only in Australia, but throughout the rest of the world.
The High Court’s decision stems from a defamation claim brought by Dylan Voller against the media companies for public comments on their Facebook pages. In 2016, pictures of Voller being restrained at a youth detention center went viral, which led to an investigation of conditions at these centers. Several media outlets covered the story and posted their articles on Facebook which gave third-party Facebook users the ability to comment on the post. In 2017, Voller sued three media outlets for defamation arguing the comments left on the post accused Voller of heinous crimes; ones that his attorney claims he did not commit. Voller argued that news outlets were legally their publishers, thus they should be held responsible for the comments.
The High Court of Australia determined the media companies facilitated and encouraged comments from third parties on posts they publish to their public Facebook pages. Consequently, the High Court determined the media companies should be considered publishers of those comments and carry the liability of any defamatory content that appears on the posts, regardless of who posted the comment. Jason Bosland, an associate professor at the University of Melbourne’s law school described the decision as having a chilling effect on the capacity of the media’s ability to produce stories that provoke public discussion.
While the underlying defamation claim has not been resolved, the High Court’s decision generates great concern for the media industry given the vast potential of implications. Looking ahead, the first, and possibly most glaring issue, is how do media companies handle this new form of liability? Given Facebook’s interactive nature, media companies with Facebook pages that allow third-party comments need to closely monitor the comments in real-time. Media companies will be forced to employ new tactics to moderate comments, including completely turning off comments or preventing comments from being immediately visible. While the latter method of moderation seems to eviscerate the potential of liability, it is hard to believe media companies will take this route. By completely turning off comments, it will be extremely difficult to promote articles and earn advertising revenue which are two key aspects for media companies. Media companies will face a difficult interest-balancing test to determine how to mitigate potential liability arising from comments on their Facebook posts.
By imposing this liability on media companies with public Facebook pages, the Australian High Court opened the flood gates for similar claims. Facebook has nearly 3 billion monthly active users which makes it the most popular social network worldwide. Simply posting an article on Facebook is now an inherently risky activity for any media company in Australia.
Because of the inherent risks associated with Facebook posts, there may be a major shift in the news industry and its presence on social media. As previously mentioned, news outlets will have to take one of two approaches: (1) real-time monitoring or (2) turning off comments. Despite what approach a company elects to take, they both require the company to give up important benefits such as viewer engagement, viewership growth, and organic reach. The media and news industries will need to find new ways to allow third parties to interact with their articles because of the loss incurred by posting to Facebook. The High Court’s holding specifically addressed the issue on Facebook but failed to consider other social media platforms, or other ways people interact with news articles. Will this third-party liability extend to every platform that a news outlet posts its article to, or will it remain limited to Facebook?
One last thing you might be wondering is what this means for the individual. Something to look forward to in Australian Law will be whether this form of liability extends to individuals and their public Facebook posts. In holding the news outlets liable, the court’s reasoning focused on the motivation, to encourage comments, behind posting an article on public Facebook pages. While this justification for imposing liability fits squarely on a news outlet, it is hard to imagine the same applies to individuals on their posts. An individual may post something for a variety of other reasons and have no desire for third-party comments.
The Australian High Court not only made news outlet jobs much harder, they also opened the door for interesting issues that will need to be addressed by either the courts or via legislative reform.
Student Bio: Bradley Bostwick is a second-year law student at Suffolk University Law School. He is a staffer on the Journal of High Technology Law. Bradley received a Bachelor of Science Degree in Economics from Syracuse University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
