Facebook Comments Can Get Media Firms Sued in Australia

Dylan Voller was already a polarizing figure in Australia when the disturbing, violent and demonstrably false allegations against him surfaced on Facebook.

Mr Voller rose to fame overnight in 2016 after a television report about the abuse of youths in the country’s prison system showed a photo of him being hooded and strapped to a chair by guards at the age of 17. The picture, which some have compared to that of prisoners at Abu Ghraib, Iraq, shocked many Australians and prompted a national investigation.

Among articles about the investigation written by major Australian news agencies and posted on their Facebook pages, several commentators attacked Mr. Voller. Some made false allegations, including that Mr. Voller raped an elderly woman and attacked and blinded a Salvation Army volunteer with a fire extinguisher.

Instead of directly confronting the commentators, Mr Voller sued the news media, arguing that they were defaming him by allowing the comments on their Facebook pages. Crucially, he didn’t ask them to delete the comments before filing his lawsuit, essentially arguing that they should be held responsible for comments that they may not even be aware of.

“The comments were circulating and I was concerned that people would think they were true,” said Mr. Voller.

His win this month in the country’s Supreme Court could be a blow to Facebook’s ability to get its content noticed. It also tarnishes the waters in a global debate about who should be held accountable for what is said on social media.

Mr. Voller has yet to prove that he has been slandered. But in response to the Supreme Court decision that the media could be held liable for online comments from others, some Australian news outlets are rethinking what type of content they post on Facebook, which may limit reader interaction.

“We will not publish stories about politicians, indigenous affairs, court rulings, or anything that we think may create a problematic reader reaction,” said Dave Earley, editor-in-chief at Guardian Australia.

Facebook added a feature that would allow a site admin to completely disable comments on a post. But Mr. Earley said the platform has refused to offer more finely tuned moderation options as comments encourage engagement – a key to Facebook’s business model.

“It is to their advantage that there are comments on everything,” said Mr. Earley.

Facebook did not respond to requests to comment on Mr. Voller’s lawsuit.

For Facebook, which has long insisted on being a neutral vessel for public discourse, the court’s verdict may spell some kind of indirect amnesty. While the company may still face defamation lawsuits in Australia, plaintiffs there are more likely to bring local people and media outlets to justice.

And if spread more widely, the view supported by the Australian court could stifle the kind of frank discourse that often keeps users on social media.

The ruling extends liability for user comments to anyone with a public Facebook page, not just news outlets. For example, the administrator of a Facebook community could be sued for comments left under a post even if the administrator was unaware of it.

The Australian judgment comes at a time when many places around the world are grappling with how to assign responsibility for what is said on social media. In the United States, Section 230 of the Communications Decency Act states that online platforms automatically have immunity from what people say in third-party comments.

The legislation, dubbed a “gift to the Internet” for its pro-speech stance, has recently been scrutinized by both sides of the political spectrum, but for the opposite reasons. Democrats have argued that section 230 should be repealed so that social media companies can be held accountable for misinformation and hate speech that has spread widely on their platforms. Republicans who dislike the law say online platforms use it to silence conservative views.

In an extreme attempt to legislate against moderation, Brazilian President Jair Bolsonaro attempted to prevent social media companies from removing inflammatory or misleading content, including his claims that the results would have been tampered with if he won the election loses in the next year. The UK Parliament is considering a plan to give media regulators the power to force platforms to remove illegal and harmful content.

Nevertheless, the broad scope of the Australian decision makes the country an “extreme outlier,” said Daphne Keller, director of the platform regulation program at Stanford University’s Cyber ​​Policy Center.

The best comparable measure is a ruling by the European Court of Human Rights in 2015, according to which the owner of an online forum can be held liable for harmful comments that are left there before the owner is even aware of it. A year later, however, a European court declared that the judgment only applied to hate speech, not to defamation.

“The court ruled that such a regulation would violate the fundamental right of Internet users to freedom of expression,” said Ms. Keller.

While the Australian ruling only directly affects Facebook Page administrators in the country, it could have global implications. In 2002 a court ruled that an Australian citizen could sue an American media company for a defamatory article published overseas. At the time, the verdict was described as a “devastating blow to freedom of expression on the Internet” that may force publishers to censor themselves. A law was later passed in the United States making such a foreign defamation decision unenforceable.

But with this new decision, Australian residents could still track international media companies with offices outside the United States for every comment ever left on their social media pages.

“The concern is that it will make Australia a magnet for international defamation disputes,” said Matt Collins, an Australian lawyer and defamation expert.

Even before Australia’s Supreme Court backed Mr Voller, the young man suing the media, his argument in a lower court had won and was felt across the country. Last year, the owner of a Facebook community page for an affluent Sydney suburb closed it after receiving threats of libel suit over a comment someone made on a rival group.

Mr. Collins fears that similar cases will be brought up by those hoping to stifle public discourse on certain issues.

“The best journalism and public interest commentary is often defamatory and controversial,” he said. “This decision limits the freedom to discuss these matters on these online platforms.”

Mr. Voller defended his complaint. The 24-year-old has publicly apologized for the crimes that have placed him in juvenile detention, including assault, robbery and car theft. He has cited both his time in juvenile detention and the rumors circulating about him as being detrimental to his mental health.

Mr Voller, an indigenous man now advocating for juvenile justice, said the court’s ruling would help protect vulnerable people in his community from the kind of abuse he has suffered online.

“Some of the comments made me suicidal,” he said. “I’m doing something right when I get people to think about how to prevent something like this from happening to other people in the future.”

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