Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer
Earlier this month, an Australian court issued a decision in a long-running defamation case: the judges ruled that Dylan Voller, who filed the case in 2017, could proceed with a defamation lawsuit against a number of Australian media outlets, including Murdoch-owned The Australian and Sky News. Not that unusual. Except that Voller isn’t suing these news companies for things they printed or broadcast about him, he’s suing them for things that Facebook users said in comments that appeared on the Facebook pages of those media companies after they linked to news stories about him. In effect, the Australian court said these media outlets are legally responsible for the comments their readers left on those posts, even if the companies were unaware of their existence. The chilling effect of this decision has already been felt even outside Australia: according to a report in the Wall Street Journal on Tuesday, CNN says it will shut off all public access to its Facebook pages in Australia because of the ruling.
The decision states that “the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments,” and therefore liable. The judges added that an attempt by the media companies to portray themselves as “passive and unwitting victims of Facebook’s functionality” was not credible. “Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences,” the court said. It’s worth noting that the decision isn’t a lower-court ruling that might later be reversed: Voller won the original case, giving him the right to sue the companies; an appeals court upheld that decision in 2019, and that in turn was appealed to the country’s highest court, which issued the latest ruling. Five of the seven judges hearing it agreed with the majority.
When news of the decision was first released, some speculated that media companies might shut down their comments, or even their entire Facebook presence, for fear of being caught up in similar lawsuits. CNN appears to be the first, but it may not be the last. The media company reportedly asked Facebook for help in turning off comments on all of its posts in Australia, but the social network refused. Until recently, Facebook didn’t allow comments to be turned off on pages, presumably because they are a significant source of user engagement. It introduced the ability to do so in 2019, after the original Australian court decision in the Voller case, but comments have to be disabled on a post by post basis, rather than across all of a publisher’s pages.
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