In a decision that will have far-reaching effects on the social media and online news landscape in Australia, the nation’s high court ruled on September 8, 2021, that Australian media companies can be held liable for defamatory comments their users post. Not only will this decision make it more difficult for Australian news outlets to post and share stories online, but it also threatens to impact ordinary individuals and undermine online free speech for the entire country.
The case involved a 2016 news story surrounding 17-year-old Dylan Voller, who was jailed in an Australian youth detention center. News articles shared by the publishers to their Facebook accounts included images and details of Voller’s mistreatment at the center, and many users commented on those Facebook posts. Voller sued the Sydney Morning Herald, The Australian, and Sky News Australia over Facebook comments posted to these stories that were allegedly defamatory. In other words, Voller sued the news outlets not because of what they wrote, but because of what other users said on social media in response to their articles.
The news outlets argued that they were not liable because they did not post the comments, nor were they aware of their readers’ intentions to post the comments. The Supreme Court of New South Wales, which initially heard the case, rejected these arguments, and the High Court upheld this ruling, stating that by posting links to their articles on social media, the outlets are inviting comments and therefore should be liable.
This ruling is a departure from how democratic countries have historically treated third-party content, such as user comments, on social media. Most of these countries have either law or court precedent stating that online services and the users of those services cannot be treated as the publishers of content that they did not create and were not aware of. Instead, the user who posts a message is liable for its content.
The High Court has just set a much higher standard for Australian media companies. Already, these companies have expressed that the ruling will require them to change what they post on social media, including no longer posting potentially controversial news stories. This could prove detrimental to Australians’ access to news content. A 2021 survey found that 23 percent of Australian news consumers turned to social media as their primary source of news, an increase from 18 percent in 2019.
News outlets may also take advantage of a new Facebook feature, implemented in March 2021 as a result of the initial Supreme Court of New South Wales ruling that allows users and pages to turn off comments or limit who can comment on their posts. Turning off comments entirely would discourage public debate around controversial news stories, while more extensive moderation places a heavy burden on news outlets, many of which are already struggling financially.
However, media companies are not the only victims of the High Court’s judgment. According to legal experts, not only can news outlets be held liable for their readers’ defamatory comments, but any social media user in Australia can be held liable for comments on their posts if they encourage other users to engage with their content.
This ruling will especially impact anyone in Australia with a larger-than-average social media following, including businesses that promote their products and services via social media, non-profits that use social media to draw attention to around important causes and issues, creators who share their works on social media, and influencers whose entire career relies on social media. Imposing liability for what other users post on their content threatens these individuals’ livelihoods and stifles the free exchange of ideas and beliefs online.
To reduce harmful and illegal content on social media, governments should avoid taking action that would stifle free speech and innovation. The Australian High Court’s ruling threatens to do just that. If the Australian court system will allow lawsuits against individuals and organizations that did not participate in and may not even have been aware of unlawful activity, Australia should pass legislation that immunizes online actors from liability for third-party content. This will protect the online exchange of news and ideas, both of which are crucial to the health of democracies.