Australian court docket choice begs query: Who’s legally chargeable for on-line defamation?

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In September 2021, the Australian High Court ruled that media companies such as newspapers and TV stations are liable for defamatory comments made by third parties on their public Facebook pages. The impact of the decision was felt far and wide. Australian politicians turned off commenting on their own Facebook pages to avoid liability, while the Australian government began drafting legislation to hold social media companies themselves legally responsible for harmful user posts.

The ruling came in the context of a defamation lawsuit brought by a former juvenile prison inmate against major Australian media outlets in 2017 over user comments on the company’s Facebook pages. The problem began when a television network aired images of the man in a restraint chair with a hood over his face in 2016 while he was detained. Several other news outlets then released the images and posted them on their Facebook pages. The scenes sparked a furious debate in Australia about conditions in juvenile prisons. But it also sparked a spate of online abuse against the man.

For example, comments on a news article published by a media outlet about the man almost uniformly blamed him for his treatment, and some were outright lies, including that he had raped an elderly woman. The man filed a lawsuit for defamation against three Australian media giants for failing to delete those comments from their Facebook pages.

In 2019, the New South Wales Supreme Court ruled that responsibility for the defamatory comments lay initially with the media outlets that published the news. The Court of Appeal upheld the decision, prompting media outlets to appeal to the High Court, Australia’s highest chamber.

The companies consistently stressed that in order for them, as news media, to take responsibility for the comments, they needed to know the content and tone of those comments in advance. Therefore, they could not be held responsible for comments posted by third parties on their Facebook pages. Facebook now allows page owners to toggle commenting on and off, but that feature didn’t exist in 2016.

However, the September 2021 ruling found that “the Court of Appeal rightly held that the complainants’ (the media companies’) actions in facilitating, encouraging and thereby supporting the posting of comments by the Facebook third-party users made them publishers of these Comments.” A later passage states: “Having taken measures to secure the commercial use of the (Facebook) functionality, the complainants bear the legal consequences.”

In response, US-based news channel CNN made its public Facebook page inaccessible from Australia. Australia’s Guardian newspaper has suspended comment on almost all of its published content, including its cooking articles.

Politicians who are active on Facebook are also turning off comments on their public pages. One of them was Peter Gutwein, the Prime Minister of the Australian state of Tasmania. In a September 24, 2021 Facebook post, Gutwein wrote, “We know social media is a 24/7 medium, but our moderation skills don’t. As a result, there will be some changes to how users can interact with this page going forward.”

In late November, Prime Minister Scott Morrison announced his government was working on legislation that would hold social media companies responsible for defamatory content posted by anonymous users if the companies did not reveal the identities of those users. The bill also stipulates that the owner of a Facebook page cannot be held responsible for user comments posted on that page. However, enforcement of the law against US-based Facebook remains an issue.

John Middleton, a professor of comparative media law at Tokyo’s Hitotsubashi University, noted that the High Court’s decision prompted the media not to easily allow problematic comments to appear on their social media pages. This, Middleton said, could prove difficult for smaller media outlets if they don’t have the resources to hire enough staff to monitor every user comment, but the court’s landmark ruling could help defamation victims.

David Rolph, expert on defamation at the University of Sydney Law School, pointed out that while the internet is borderless, laws differ from country to country and these laws do not meet the legal challenges of the online world. He added that first and foremost there needs to be a framework to establish the identity of the person behind each online comment and hold them legally responsible for whatever they post. The Internet must not remain a lawless space, said Rolph.

Dealing with malicious social media posts has also become a societal problem in Japan. In response, revisions to Japan’s Limitation of Vendor Liability Law will come into effect by fall 2022, making it easier to initiate court cases for disclosing an anonymous user’s identity. The government is also considering imposing prison terms for criminal defamation.

Yahoo Japan, the country’s largest internet portal, announced in October last year that it would hide user comment sections in Yahoo News articles when the number of problematic posts reached a certain number – an example of private companies taking the lead in combating Trolling Measures.

Kenta Yamada, an expert on freedom of expression and law at Senshu University, told Mainichi Shimbun, “As a forward-looking effort to help victims, all of this is commendable. Regulating their platforms could also very quickly narrow the space for free speech. Japanese media has a history of self-regulation, and social media companies need to fulfill their social responsibilities, so proactive efforts need to be gradually accumulated.”

(Japanese original by Epo Ishiyama, Asia General Bureau, Kim Suyeong, Foreign News Department, and Ken Aoshima, Tokyo City News Department)

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