High Court obscures public debate with social media ruling

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Throughout its nearly 170-year history, Age had to defend in court articles that we publish in our newspapers. In modern times, the same has also applied to our websites. However, a High Court ruling on Tuesday made it clear that we can also be responsible for things that we have had no role in writing, editing, or bringing into the public sphere.

The court ruled that several news outlets should be regarded as the editors of allegedly defamatory comments added by third parties to Facebook posts about a former Northern Territory detainee. Dylan voller.

The High Court’s decision places a heavy burden on the media.Credit:Alex Ellinghausen

At the time the comments were made, Facebook did not allow operators of public pages to disable them. The NSW Supreme Court suggested in 2019 that we use the ‘keyword filter’ instead, blocking comments using common words such as ‘and’, ‘the’ and ‘she’ and then only reverting those that don’t. were not offensive – an incredibly onerous task.

In response to this judgment, the only choice Age felt he had been leaving the field, leaving contentious articles that were clearly in the public interest off of Facebook entirely because of the risk that they would attract defamatory comments. The effect was to leave social media platforms, already ridiculed for a lack of quality information, even more at the mercy of the disinformation team – the QAnon guys, the Russian bots, and the ivermectin traders – or anyone else with an ax to grind and a budget to spend. This was corrected in March and media can now choose to turn off comments on individual posts.

But on Tuesday, the High Court said the media were publishers because they “encouraged” and “facilitated” commentary by setting up public “message boards”.

The judgment places a significant burden on the news media. Age can now be sued for any of the thousands of reader comments under each of the roughly 50 posts he posts on his Facebook page each day. It is impossible to moderate this exponentially growing anthill in its entirety, as the court seems to recommend.

In fact, the impact of the judgment extends far beyond the media. Any community organization, business or individual risks being sued for comments posted by third parties on their Facebook pages or other interactive social media.

Despite the increased risk, Age made only modest changes to its social media policies. He turns off comments on some articles because he wants to maintain the vital link with readers through social media and considers his role in delivering accurate and widely available information more important than ever. Certain other organizations, which do not have Ageresources, may decide to completely disable comments on their Facebook pages due to the risk that they will be sued for comments made by random users.

In many cases, it may be possible to mount a defense, for example, on the grounds of “innocent dissemination”. The publisher of the Facebook post should show that he could not reasonably have known about the comment and took the appropriate steps to remove it when he discovered it.


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