NSW Court Still Thinks Media Companies are Responsible for Defamatory Facebook Comments

An Apple iPhone 11 Pro Max is seen displaying a Facebook logo in the native application in The Hague, The Netherlands on March 2, 2020. (Photo by Jaap Arriens/NurPhoto via Getty Images)
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NSW’s highest court has ruled against an appeal by three Australian media companies, deeming them responsible for defamatory Facebook comments regarding a former Don Dale Youth Detention Centre detainee.

The NSW Supreme Court has thrown out an appeal on June 1 by Fairfax Media and two News Corp subsidiaries — Sky News Australia and The Australian — holding up a ruling from mid-2019.

The original decision, made by NSW Supreme Court Justice Stephen Rothman in June 2019, found the three companies had published stories about former Don Dale Youth Detention Centre detainee, Dylan Voller, on Facebook and were responsible for the defamatory comments left by members of the public back in 2016 and 2017.

The offending comments were left on Facebook pages of the Sydney Morning Herald, The Australian, Sky News, The Bolt Report and The Centralian Advocate and had imputed that Voller had undertaken violent actions that he deemed untrue and defamatory.

Court finds media companies had ‘turned a blind eye’

The media sites attempted to appeal the 2019 ruling but the Supreme Court dismissed them, stating they had encouraged public engagement on these articles and were therefore accepting responsibility for the content of the comments.

“The evidence is clear that the relevant Facebook pages were created for and used by the [media companies] on the basis that Facebook users generally would be invited to post comments on the Page with the result that their comments would also be made available to Facebook users generally,” the court said.

“By their invitations to members of the public to comment on their news items, the [media companies] accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments.”

An affidavit by a Fairfax’s Social Media Editor argued it had no control over the contents of comments before they are posted by users nor prior knowledge of what would be posted. It also said there was no mechanism on Facebook to allow for the review of comments by the company before they are posted on an article.

The court will now decide whether the comments left on the companies’ Facebook pages were defamatory and whether a defence can be applied. The court did rule the media companies would be able to use the defence of innocent dissemination under Defamation Act 2005, which is an exemption designed to protect people who unwittingly publish defamatory matter.

Three separate media companies — Bauer Media, Seven West Media and Daily Mail Australia — attempted to intervene in the cases in order to bolster the appeal’s chance of success but the court dismissed their notices of motion.

Voller’s mistreatment at the Don Dale Youth Detention Centre was at the centre of an ABC investigation by Four Corners, prompting a royal commission into the treatment of children in detention in the Northern Territory.