Online ‘publishers’ liable for reader comments: High Court
FACEBOOK, Twitter and Instagram users. Take heed.
The High Court ruled this week (https://bit.ly/2XbPTQa) that publishers can be held responsible for defamatory comments posted by readers to their social media sites.
The five-to-two ruling could mean online publishers (including StreetWise Media) can be sued for offensive comments left on their sites even if they are not aware of them. By facilitating and encouraging such comments, the publisher legally is responsible for them and, potentially, the harm they cause: “… 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.”
But make no mistake. Readers who post offensive comments can be held responsible for their comments under defamation law, as explained below. This ruling also accommodates the plaintiff who, instead of pursuing legal action against an individual social media user or a troll, especially if they use a pseudonym, are more likely to sue a media company and independent publisher with deeper pockets.
Most administrators regularly screen comments and check notifications under guidelines or criteria posted on their pages. Others don’t as they are volunteers with little time to properly manage sites or understanding of defamation law.
The StreetWise Facebook page and website at www.streetwisemedia.com.au include a ‘site etiquette’ section that draws on more than 30 years of training and experience in defamation law and legal reporting to ensure readers keep it ‘clean’.
Adhering to the Media, Entertainment & Arts Alliance Code of Ethics, StreetWise values and strives to ensure: “Respect for truth and the public’s right to information … Journalists search, disclose, record, question, entertain and comment. They scrutinise power, and exercise it with honesty, fairness, independence and respect.”
On notice
On August 8, StreetWise posted on its Facebook page an innocuous, tongue-in-cheek report questioning the definition of speed bumps as ‘cushions’ by City of Fremantle officers. One reader posted a series of comments that were largely unrelated to the speed bump issue, which is why they were removed.
The comments allegedly suggested an “improper relationship” between a Fremantle councillor who is running in the elections next month and a third party whose lawyers issued StreetWise with a ‘concerns notice’ on August 23: “It is our client’s understanding that the posts have since been removed from the page. Our client is not seeking any relief from you or the page at this stage. Our client merely requested us to bring this matter to your attention.”
A concerns notice is a legal letter giving the person or organisation alleged to have made (or published) the defamatory comments a chance to respond. StreetWise did not respond.
The lawyers also sent notice to the StreetWise reader who was invited, “to make a suitable offer of amends”, including an apology and undertaking they make no further comment about the aggrieved third party who believed the comments were “grossly defamatory”.
The High Court ruling is not the end of the matter.
With media companies acknowledged as publishers of potentially defamatory comments, it is still up to a court to decide whether comments are in fact defamatory. the plaintiff also has to prove they have actually suffered or are likely to suffer serious harm to their reputation.
This also avoids ‘trivial’ defamation cases and gives some protection to administrators of social media pages, particularly private individuals and bloggers. Admins and moderators of ‘Freo’ sites, including those on council-funded pages, would do well to heed the High Court ruling. So too should the City of Fremantle which, ultimately, is a ‘publisher’ funding these sites.
With local elections in the air, online ‘chatter’ is expected to be robust, and rude. It is up to admins to moderate pages as it takes just one out of the thousands of readers who follow them to shipwreck their online communities, and bank accounts.
“It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words.”
Those who support the ruling say it will also help clean up the online ‘garbage’ posing as credible blogs and websites. Two in particular come to mind in Freo, but why tempt another concerns notice?
Featured image courtesy of forbes.com.
