Australia’s High Court, roughly the equivalent of the U.S. Supreme Court, has ruled that Facebook users are responsible for the content of complete strangers who post defamatory comments on their posts. The ruling upholds a June 2019 ruling by the Supreme Court of New South Wales, home to Australia’s largest city of Sydney. And it runs counter to how virtually everyone thinks about liability on the internet.
The High Court’s ruling on Wednesday is just a small part of a larger case brought against Australian news outlets, including the Sydney Morning Herald, The Age, and The Australian, among others, by a man who said he was defamed in the Facebook comments of the newspapers’ stories in 2016.
The question before the High Court was the definition of “publisher,” something that isn’t easily defined in Australian law.
From Australia’s ABC News:
The court found that, by creating a public Facebook page and posting content, the outlets had facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, and they were, therefore, publishers of those comments.
The Aboriginal-Australian man who brought the lawsuit, Dylan Voller, was a detainee at a children’s detention facility in the Northern Territory in 2015 when undercover video of kids being physically abused was captured and broadcast in 2016. Voller was shown shirtless with a hood over his head and restraints around his arms. His neck was even tied to the back of the chair.
Facebook commenters at the time made false allegations that Voller had attacked a Salvation Army officer, leaving the man blind in one eye.
It’s extremely common for people on social media to fabricate stories about people who’ve been arrested—even child prisoners facing abuse—to imply that they somehow deserved the treatment they received from police and prison guards. People like Tucker Carlson of Fox News are notorious for this kind of behavior, even blaming George Floyd for his own death, but anonymous internet trolls can be even more vicious.
Voller never asked for the Facebook comments to be taken down, according to the media companies, something that was previously required for the news outlets to be held criminally liable for another user’s content in Australia. Facebook comments couldn’t be turned off completely in 2016, a feature that was added just this year.
Wednesday’s ruling did not determine whether the Facebook comments were defamatory and Voller’s full case against the media companies can now go forward to the High Court. Nine News, one of the companies being sued, released a statement to ABC News saying they were “obviously disappointed” in today’s ruling.
“We also note the positive steps which the likes of Facebook have taken since the Voller case first started, which now allow publishers to switch off comments on stories,” Nine told ABC.
The High Court ruling is arguably one of Australia’s dumbest in recent memory and will make participating in online discussions much more difficult down under. Everyone should be held accountable for their own actions online, but things start to get weird when you make users responsible for the content of complete strangers.
Would the Australian High Court find a Twitter user responsible for the content posted in reply to a news outlet’s tweet? That question wasn’t brought to the High Court yet, but it seems like only a matter of time.