Media companies can be liable for defamatory comments posted on Facebook pages


YESTERDAY, the High Court of Australia ruled that media outlets may be held responsible for defamatory comments readers leave on its social media pages.

Five judges ruled in favour of Dylan Voller, a former Northern Territory youth detainee, while two dissented (Justice Edelman and Justice Steward). The case will now return to the lower courts to determine whether Voller was defamed.

The court of the first instance found that the media outlets were indeed publishers of the third-party comments by the readers.

This decision was subsequently affirmed by the New South Wales Court of Appeal where it was ruled that it was irrelevant that the comments had been deleted by the media companies after the notice was given.

The high court held that the Court of Appeal was correct in deciding that the acts of the media companies in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

Voller’s lawyers, O’Brien Criminal & Civil Solicitors, said: “this is a common-sense decision that accords with longstanding law on the issue of publication.

“It is commonly known that media companies encourage increased engagement on their posts so that their content is seen by a larger audience.

“This helps in attracting advertising revenue. With this strong commercial imperative driving them there was no doubt that the media companies lent their assistance to the publication of third-party comments.”

Writing in The Conversation, David Rolph, a professor of law at the University of Sydney, said the ruling “may mean anyone who runs a social media page can theoretically be sued over disparaging comments posted by readers or random group members — even if you aren’t aware of the comment.”

In Malaysia, a similar decision by the Federal Court on February 19, 2021, the final appellate court, by way of a 6-1 majority, found Malaysiakini liable for contempt over comments published by its readers.

With these judgments, media outlets will now have to actively monitor comments posted by the readers on their social media pages. – September 9, 2021.

* Julian Ong reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.


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