Andrews and Berejiklian weigh defamation risks of allowing Facebook comments

The offices of Daniel Andrews and Gladys Berejiklian are considering how to manage defamation risks on their social media pages, as Tasmanian Premier Peter Gutwein said he would turn off comments on some posts on his Facebook page due to a High Court ruling.

Mr Gutwein announced the move on his Facebook page on Friday, referencing the High Court ruling this month that found media companies are legally responsible for allegedly defamatory comments users leave on their public pages even if they were not aware of the comments.

“We know social media is a 24/7 medium, however, our moderation capabilities are not. As a result, there will be some changes to how users can interact with this page going forward,” Mr Gutwein posted.

“While our page is monitored closely, there may be some posts which have commenting capabilities turned off or user contributions restricted.”

It is unclear if other politicians will follow suit. A spokeswoman for Victorian Premier Daniel Andrews said: “We are aware of and are considering the High Court decision”.

The NSW Department of Premier and Cabinet said it was also weighing up the implications of the decision.

It follows the High Court’s ruling on September 8 in the Voller case that media outlets are legally responsible as “publishers” for third parties’ comments on their Facebook pages, in a decision that has implications for all social media users and particularly those who run pages.

The decision upheld a NSW Court of Appeal ruling in June 2020 that news outlets including The Sydney Morning Herald and The Australian were responsible as publishers for readers’ allegedly defamatory Facebook comments about former Northern Territory youth detainee Dylan Voller because they facilitated the comments by setting up and posting on public Facebook pages.

The issue of whether the companies were publishers was a threshold issue in the case.

The decision cleared the path for Mr Voller to sue the media outlets for defamation over the third-party comments in the NSW Supreme Court. However, the news outlets still have the opportunity to argue defences to the defamation, including the innocent dissemination defence, and the court has yet to decide if the comments are in fact defamatory.

University of Sydney Professor David Rolph, a defamation law expert whose work is cited in the High Court judgment, said Mr Gutwein’s move was “risk management”.

“Because we can all be publishers now through social media, it’s not just media outlets that need to manage defamation risk, which of course, media outlets have done for decades if not centuries,” he said.

“Turning off the comments is one way of managing the risk of defamation. It also just undermines the interactivity which is central to social media platforms.”

Other options include not posting content that is likely to attract high-risk comments, employing someone to monitor comments around the clock, or not having social media accounts at all.

University of Melbourne Associate Professor Jason Bosland, the director of the Centre for Media and Communications Law, said the ramifications of the High Court decision are “very significant” even if the media companies ultimately can successfully argue defences in the Voller trial.

“If you’re an organisation or a politician where you get a lot of comments being made in response to your posts, then I think you would be concerned. It must be going to have, in the coming weeks and months, an impact on the way people engage on social media,” he said.

“I think it’s definitely going to stifle political debate and have a chilling effect on the public sphere that now exists on social media.”

Professor Derek Wilding, the co-director of the Centre for Media Transition at the University of Technology Sydney, said defamation law reform was the “only realistic way” of striking a balance on online speech.

“Yes, there could be a dampening of political discussion as a result of cautiousness over the allowing comments on Facebook pages and other social media sites,” Professor Wilding said.

“But what we really need is a solution that comes through law reform that steers a middle ground that enables a certain amount of free discussion without, at the same time, allowing open slather and putting no restraints around what people can say.”

The nation’s attorneys-general are considering this very issue, having released a discussion paper in March calling for submissions on the question of internet intermediaries’ liability in defamation for the publication of third-party content.

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