Defamation and social media: when old laws meet modern tech

By Catriona May

A recent NSW Supreme Court judgment brings into question how out of step Australia's defamation laws have become in the digital age.

In 2017, there were 101 defamation cases heard in Australia. Compare that with the UK, where just 49 cases were heard that same year. While the reasons so many Australians are suing for defamation are varied and complex, chief among them is how plaintiff-friendly our defamation laws are.

“The presumption of falsity means the plaintiff doesn’t have to prove what has been published is false, making it easy to establish the case and difficult to defend it,” explains Associate Professor Jason Bosland (LLB(Hons) ’04, LLM ’08), Deputy Director of the Centre for Media and Communications Law at Melbourne Law School.

It adds up to inadequate protections for freedom of expression.

If the balance between freedom of expression and the right to reputation has tipped too far in favour of the latter, it could have a particularly chilling effect on public interest journalism. A recent decision in New South Wales has put this sharply into focus.
In June this year, Dylan Voller, a former detainee at Don Dale Youth Detention Centre whose treatment there sparked the 2016 Royal Commission into the Protection and Detention of Children in the Northern Territory, brought a successful defamation case against three of Australia’s largest media companies.

NSW Supreme Court Justice Stephen Rothman AM ruled that Fairfax Media, Australian News Channel (Sky News) and News Corp were liable for comments made by third parties on Facebook posts of articles about Voller.

The decision overturns previous understandings that publishers were only liable for third-party comments on social media if they had been made aware of them and failed to remove them – the innocent dissemination, or ‘paperboy’, defence.

In his judgment, Justice Rothman said that the media companies encouraged users to comment on Facebook articles to meet commercial ends, and failed to pre-moderate comments by using technology allowing comments containing particular words to be ‘blocked’.

It’s an “extraordinary” decision, says Bosland.

“It’s created a brand-new category of liability for publication. If the decision is not overturned on appeal, it will mean that public interest journalism is hindered because of the reliance on these types of platforms to disseminate news. It’s really quite oppressive.”

The mainstream media and many media lawyers have been vocal in response.

The Guardian asked if “an Australian judge has just broken Facebook for publishers” and News Corp Australia called the judgement “ridiculous” and “out-of-step”.

Peter Bartlett, a partner at MinterEllison, says the judgment “will significantly impact the way social media is used and will invariably restrict freedom of expression, and the exchange of ideas and opinions in Australia… [it] is untenable in today’s technology and social media environment”.

News Corp has since lodged an appeal.

Old laws and new technology

Australia’s defamation law was last reviewed in 2005 to bring uniformity across the states and territories. The iPhone would not come out for another two years and Facebook was in its infancy. Twitter did not yet exist.

The effect of using old laws to manage issues arising from new technologies is of serious concern, but because the current laws resulted from cooperation between the states and territories, they have proved almost impossible to amend.

“The impact on public interest journalism, particularly investigative journalism, is quite serious,” says Dr Matthew Collins AM QC (PhD ’00), President of the Victorian Bar, Senior Fellow at Melbourne Law School and author of two books on defamation.
The Media Entertainment and Arts Alliance agrees, saying Australia’s defamation rules are “stacked against journalists”.

“In practice, journalism that relies on information provided by confidential sources and whistle blowers is very risky,” says Collins. “As a lawyer I quite often have to advise that the law will offer no protection in circumstances where, as a human, I’m firmly of the view the public has a right to know.”

Complex defamation laws do not only affect public interest journalism. The system can fail private individuals as well.

Social media has made us all ‘publishers’ in the eyes of the law. “People who are not professional media publishers are exposed in a way that didn’t used to happen,” says Richard Leder OAM (GDipCommLaw ’93), a partner at Corrs Chambers Westgarth who represented Rebel Wilson in her recent case against Bauer Media.

“The overwhelming proportion of cases are people complaining about what someone has said about them online or in a digital context. Increasingly, complaints are made in circumstances that wouldn’t have arisen 30 or 40 years ago.”

Media law experts are starting to consider alternative ways to resolve less serious cases of defamation, in an effort to stop so many cases going to court.

“In my experience, most people who are defamed are not in it for the money,” says Leder. “Instead, they’re after a correction and an apology, and the law could do better to facilitate that.”

Collins would like to see a “quick and cost-effective remedy for those whose reputations are destroyed, particularly via social media”, as an alternative to going to court.

He would also like to see a reversal of the presumption of falsity – something that has already happened in the US.

“In every other area of law, we require the plaintiff to demonstrate some wrongdoing before we record a remedy, but in defamation the plaintiff benefits from presumptions of falsity and damage,” he says. “Changing that would make a big difference in serious public interest journalism cases.”

In England and Wales, a ‘serious harm threshold’ was introduced in 2013 as part of a series of reforms that made defamation laws more media-friendly. Introducing a similar test here could allow Australian courts to be more nuanced in how they consider the harm caused by reputational damage.

“I don’t know if the harm is there in social media comments to the same degree that it would be in other forms of publications,” says Bosland. “Often these comments are not seen by very many people. We should be able to vary damages according to where the material was posted.”

The more immediate issue, however, is the upcoming appeal against the Voller decision and its impact on press freedom. “If this becomes the law of the land, we’ll be out of step with the way the rest of the world is going,” says Bosland.

“I think it would really make Australia stand out as an outlier in terms of these issues. When combined with other aspects of free speech in Australia, it’s pretty damning.”

Banner Image Credit: Kon Karampelas on Unsplash.

This article originally appeared in MLS News, Issue 22, November 2019