Facebook comments may lead media companies to sue in Australia
Dylan Voller was already a polarizing figure in Australia when the disturbing, violent and patently false accusations against him began to appear on Facebook.
Mr Voller rose to fame overnight in 2016 after a TV report on the abuse of minors in the country’s criminal detention system released a photo of him, at 17, hooded and strapped to a chair by guards. The image, compared by some to those of Abu Ghraib prisoners in Iraq, shocked many Australians, sparking a national investigation.
Under articles about the investigation written by major Australian news outlets and posted on their Facebook pages, several commentators attacked Mr Voller. Some have made false accusations, including that Mr. Voller raped an elderly woman and attacked a Salvation Army volunteer with a fire extinguisher, blinding her.
Instead of directly confronting the commentators, Mr. Voller sued the news media, arguing that they were defaming him by allowing comments on their Facebook pages. Importantly, he didn’t ask them to remove the comments before taking legal action, essentially arguing that they should be held accountable for comments that they might not even be aware of.
“The comments were mixed and I was concerned people would think they were true,” Voller said.
His victory this month in the country’s highest court could be a blow to Facebook’s ability to draw attention to its content. It also further muddies the waters in a global debate about who should be held accountable for what is said on social media.
Mr. Voller has yet to prove that he has been defamed. But in response to the Supreme Court ruling that the media could be held responsible for other people’s online comments, some Australian media are re-examining the types of content they put on Facebook, potentially limiting engagement with readers.
“We will not be posting stories about politicians, Indigenous issues, court decisions, anything that we think could elicit a problematic response from readers,” said Dave Earley, Editor-in-Chief of Guardian. Australia.
Facebook added a feature that allows a Page Admin to completely disable comments on a post. But Mr Earley said the platform had been reluctant to offer more finely tuned moderation options, as comments drive engagement – a key to Facebook’s business model.
“It is in their best interests that there are comments on everything,” Earley said.
Facebook did not respond to requests for comment on Mr. Voller’s trial.
For Facebook, which has long insisted it was a neutral vehicle for public discourse, the court ruling may offer some sort of indirect amnesty. Although the company may still face libel lawsuits in Australia, plaintiffs will be more likely to sue local citizens and media companies.
And if adopted more widely, the Australian court-approved view could stifle the kind of free speech that often keeps users glued to social media.
The ruling extends responsibility for user comments to anyone with a public Facebook page, not just news outlets. For example, the admin of a Facebook community could be sued for comments left under a post, even if the admin ignored them.
The Australian move comes at a time when many places around the world are debating how to assign responsibility for what is said on social media. In the United States, Section 230 of the Communications Decency Act states that online platforms are automatically immune to what people say in third-party comments.
The legislation, which has been dubbed a “giveaway to the Internet” because of its pro-speech stance, has recently come under scrutiny on both sides of the political spectrum, albeit for opposite reasons. Democrats argued that Section 230 should be repealed so that social media companies can be held accountable for the disinformation and hate speech spreading widely on their platforms. Republicans who dislike the law say online platforms are using it to silence conservative views.
Elsewhere, in an extreme attempt to legislate against moderation, Brazilian President Jair Bolsonaro has attempted unsuccessfully to ban social media companies from removing inflammatory or deceptive content, including his claims that if he loses the election l next year, the results will have been rigged. The UK Parliament is considering a plan to give media regulators the power to force platforms to remove illegal and harmful content.
Yet the broad scope of the Australian decision makes the country an “extreme outlier,” said Daphne Keller, director of the platform regulation program at the Cyber Policy Center at Stanford University.
The most comparable measure, she said, is a 2015 ruling by the European Court of Human Rights that the owner of an online forum can be held liable for damaging comments left there, before the owner even realizes it. But a year later, a European court said the ruling only applied to hate speech, not defamation.
“The court ruled that such a rule would violate the fundamental right of Internet users to freedom of expression,” Ms. Keller said.
While the Australian decision directly affects only Facebook page admins in the country, it could have global implications. In 2002, a court ruled that an Australian citizen could sue an American media company for a defamatory article published abroad. At the time, the decision was called a “devastating blow to freedom of expression online”, potentially forcing publishers to censor themselves. In the United States, legislation was subsequently passed to make such a foreign defamation ruling inapplicable.
But with the new move, Australian residents could still lash out at international media companies with offices outside the United States for any comments left on their social media pages.
“The concern is that this will make Australia a magnet for international defamation litigation,” said Matt Collins, an Australian lawyer and defamation expert.
Even before Australia’s highest court backed Mr Voller, the young man who sued the media, his argument had prevailed in a lower court and had already been felt across the country. Last year, the owner of a community Facebook page for an affluent Sydney suburb shut it down after receiving the threat of a libel suit over a comment someone left about a group rival.
Mr Collins is concerned that similar cases could be brought by those who hope to quash public discourse on certain topics.
“The best public service journalism and the best commentary are often libelous and controversial,” he said. “This decision clearly chills the freedom to discuss these issues on these online platforms. “
Mr Voller defended his lawsuit. At 24, he has apologized publicly for crimes that landed it in juvenile detention, including assault, theft and auto theft. He cited both the time spent in juvenile detention and the rumors circulating about him as damaging to his mental health.
Mr Voller, an Indigenous person who now campaigns for youth justice, said the court ruling would help protect vulnerable people in his community from the type of abuse he has suffered online.
“Some of the comments made me feel suicidal,” he said. “I’m doing something right if I get people thinking about how to prevent this kind of thing from happening to other people in the future. “