In 2019, Dylan Voller sued three media titans for defamation. Voller claimed that Fairfax Media, Nationwide News and Sky News were responsible for defaming him via the comments made on video of him that were posted on their Facebook pages.
Voller found his way into the public eye after his mistreatment in a Northern Territory detention centre was featured on the ABC’s Four Corners. Voller participated in several interviews outlining the mistreatment. In doing so he became an advocate for youth detention reform. Shortly after the story aired the prime minister announced a federal investigation into youths’ treatment within detention centres. Different news outlets began to report on the issue, amplifying the unravelling controversy. In this process of reporting Facebook accounts owned and managed by Fairfax, Nationwide and Sky posted a video of Voller in a compromising state within the detention centre.
Facebook users began to comment on this video. Some expressed support for Voller’s plea to reform Juvenile detention, a hard conclusion not to arrive at considering the confronting nature of the subject matter. However, others began to accuse Voller of an array of violent crimes, perhaps implicitly attempting to justify Voller’s treatment within the detention centre.
Voller then sued Fairfax, Nationwide and Sky on the basis that they were responsible for the defamatory comments made about him, as they are owners and managers of the page on which the comments were publicised. This equates to arguing that the news outlets have an active responsibility to monitor and censor comments that are damaging or inappropriate that are present on their social media accounts.
Voller won this initial case with Pepperit’s Managing Director, Ryan Shelley, testifying as an expert witness on social media. The Judge ruled that ignoring defamatory content published on your page means that the owner of the site holds burden of publishing the defamatory content. The judge compared the situation to cases in which defamatory material has been published on public spaces in buildings which caused offence. In these such cases the building owners were held responsible as they did not actively remove the offensive or defamatory content.
Through this comparison the judge likened the digital distribution of public media to the physical distribution of public media. And hence he judged that digital media should be governed by the same laws that are present for physical media. Thus, the judge justified their position as if obviously offensive graffiti was present on a building, the chief responsibility would fall onto the owner of the building to remove it.
The defendants opted for a different comparative argument to defend their position. They put forward that Facebook pages are not like a public building, but rather like a private phone connection. Arguing that if one person said something defamatory over the phone to many other people the phone company would not be liable. This too seems like a reasonable comparison to make. Whether Facebook pages are more like public buildings, phone connections or something else is perhaps the deciding factor of the case. The case was eventually ruled in Voller’s favour.
Both parties’ need to appeal to metaphor to explain the legal duties for social media is indicative of the ambiguity, flexibility and lack of clear boundaries that are present within the space. This is indicative of the need for new regulation created especially for social media. This ambiguity chiefly arises as social media’s position as a public or private communication medium is unclear. The defendants argue that social media should be legally treated as private media, i.e. a telephone, whereas the court argues that social media should be legally treated as public media, i.e. a public notice board. The resultant judgement hence dictates which laws its operators should fall under. This case has now been appealed twice and is set to be heard in the high court. Its verdict could be instrumental in setting precedent for further ambiguous defamation cases that occur on social media. A situation which seems to be occurring at an increasing rate.
A verdict in favour of Fairfax, Nationwide and Sky would have the positive effect of supporting community engagement with crucial current moral and political issues. However, in allowing this greater scope for involvement and free speech the companies risk potentially supporting the posting of derogatory comments. What was said about Voller could be repeated and the news outlets could wash their hands of such comment’s negative effects, a potentially regrettable outcome. Considering that it is normally the extreme sides of a debate that are most heard on social media, this lack of taking responsibility could be understood as damaging. This is the case as it can be argued that by promoting engagement in such heated topics the news outlets are amplifying the extreme factions of each side of the debate. In doing this a cavern could be created between two sides of a debate, as these often-extreme voices seem to have little interest in creating a productive discourse or aim to find a reasonable conclusion.
A verdict in favour of Voller could set requirements by which news outlets would be legally required to closely monitor the comments and actively remove any that might be potentially damaging. While this is a viable notion in the physical space, e.g. cleaning a notice board, it is considerably more difficult to carry out in the digital space. This is due to the sheer reach of the accounts, Sky News for example has 8.7 million followers, all of whom can write whatever they want on Sky’s posts. So due to the difficulty of monitoring and policing such engagement the news outlets would be more likely to switch off the comment section entirely. This would be effective as it prohibits any engagement. Yet by doing this the news outlets would sacrifice the core benefit of social media, which is that it allows for a two-way conversation to take place: from news outlet to public, and from public back to news outlet. This also seems like a regrettable choice as while the public’s input is sometimes inflammatory, many highly positive outcomes have arisen through the public’s ability to actively criticise and improve communications from major news outlets and other media distributors.
How our current media law applies to the rapidly changing and foreign landscape of social media is uncertain and has consequences that are far reaching. It affects the largest news broadcasting outlets and individuals’ engagement with close friends alike. This case will be an important initial step in attempting to navigate through this uncertain terrain.
Michael Aroney is a Search and Content Marketing specialist for Pepperit, a digital marketing agency who are experts in the legal industry. He attended Sydney University and there completed a degree in marketing and philosophy. This facilitated his ability to think critically about consumption for the aim of social progress.
Michael takes pride in being an all-rounder, an avid enthusiast of both the highly technical and creative sides of the marketing process. As a keen writer Michael regularly contributes to the Pepperit Insights blog on a range of topics.