Australian High Court ruling could hold media sources legally responsible for their Facebook posts

The new legal ruling could have major implications for the way news is shared online, and provide less sensationalism in Facebook posts, which are designed to elicit maximum response.

Last week, the High Court of Australia upheld the verdict, which, in some circumstances, could have led to the Australian media being held accountable for user comments left on their Facebook pages.

The finding has raised a number of concerns about potential restrictions on journalists’ freedom of speech and disruption of reporting capacity. But the complexity of the case goes deeper than the initial title. Yes, the High Court ruling gives more room for the media to be legally responsible for comments on their social media pages, but the full nuance of the ruling aims to ensure that incendiary posts are not shared with the clear intent of luring comments and shares.

The case stems from an investigation conducted in 2016, which revealed that inmates at the Darwin Youth Detention Center were severely abused, even tortured, during their detention. In subsequent media coverage of the incident, some media outlets tried to provide more context about the victims of this torture, and a handful of publications singled out the criminal records of these victims as an alternative story in this case.

One of the former inmates, Dylan Voller, claims that his later media coverage was inaccurate and defamatory, which led to Voller seeking legal redress for the published allegations. Voller himself became the focus of several articles, including Pierce in the title The Australian “The list of incidents in Dylan Voller’s prison has exceeded 200”, which pointed to the many injustices that Voller allegedly committed, which led to his imprisonment.

A case specifically related to comments on Facebook occurred when these reports were republished on the Facebook pages of the respective outlets. At the heart of Voller’s argument is that framing these articles, especially within Facebook posts, provoked negative comments from platform users, which Voller’s defense team claimed was designed to provoke more comments and engagement in these posts, and therefore garner more reach within Facebook algorithm.

The crux of the case boils down to a critical point – it’s not that publications can now be sued for people’s comments on their Facebook posts, simplified, but it is about how the content is framed in such posts and whether there can be a definite link between the posts themselves on Facebook and whether this lured slanderous comments and a community perception that could harm the individual (it is not clear that the same regulations would extend to the entity as such).

Indeed, in the original case notes, Voller’s legal team argued that the publications in question were:

“It should have been known that there is a ‘significant risk of defamatory observations’ after publication, in part because of the nature of the articles.”

Therefore, the complexity here extends far beyond the ultimate conclusion that publishers can now sue for comments posted on their Facebook page, as the real incentive here is that those who post any content on Facebook on behalf of media publishers need to be more careful in the actual text of their posts . Because if subsequent defamatory comments can be linked to the post itself, and then it is determined that the publisher instigated such a response, then a legal action can be filed.

In other words, publishers can re-share anything they like, as long as they’re in line with the facts and don’t look to deliberately share incendiary social media posts around any such incident.

In case, here’s another article published by an Australian about the Dylan Voller case, which, as you can imagine, also drew a long list of critical and negative remarks.

But the post itself is not defamatory, but just a statement of facts – it is a quote from MPs, and there is no direct evidence to suggest that the publisher tried to entice Facebook users to comment based on the shared article.

What the real point is here – the verdict puts a greater burden on publishers to consider framing their Facebook posts as a means of attracting comment. If a publisher is seen encouraging negative comments, then they can be held responsible – but there must be conclusive evidence showing both harm to the individual and intent within their post on social media, especially an unrelated article, which could then lead to prosecution .

Which could actually be a better way. Over the past decade, Internet algorithms have altered media incentives so much for the clear benefit to publishers of sharing raging headlines, emotionally charged to provoke comments and sharing, which then ensures maximum reach.

This extends to misinterpretations, half-truths, and outright lies to elicit such a user response, and if there is a way for publishers to respond to this, it seems like a useful approach, as opposed to proposed Section 230 U.S. reforms that would sharpen restricted press freedoms.

Again, this verdict applies specifically to posts on Facebook, and the wording of such is designed to elicit an emotional response to entice engagement. Proving the final link between a Facebook update and any personal harm will still be difficult, as is the case in all defamation cases. But perhaps this revelation will encourage Facebook page managers in the media to be more up-to-date in facts, as opposed to attracting comments to run the algorithm.

As such, although it opens up increased accountability to the media, it could actually be a way forward to introduce more factual reporting and hold publishers accountable for initiating internet mafia attacks based on their review of the case.

Because it’s clear that this is happening – the best way to attract comments and share on Facebook is to encourage an emotional reaction, which then encourages people to comment, share, etc.

If it is found that posting on Facebook clearly encourages this, and this can cause reputational damage, it seems like a positive step – although it inevitably comes with an increased risk for social media managers.

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Naveen Kumar

Friendly communicator. Music maven. Explorer. Pop culture trailblazer. Social media practitioner.

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