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OSMAN:

From Schwartz Media, I’m Osman Faruqi. This is 7am.

A landmark judgement by the High Court of Australia has reignited debate over whether or not our legal system is fit for purpose in the age of social media.

The Court found that news organisations are liable for the comments posted on their Facebook pages.
The decision has forced some news sites to shut down their pages - impacting how we find and consume the news.

Today, legal affairs editor for The Saturday Paper, Richard Ackland, on what this High Court decision means for how we use the internet; and how our courts are out of step with the online world.

It’s Wednesday, October 27.

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OSMAN:

Richard, a recent High Court decision has had some pretty significant consequences for news organisations. It's impacted all of us here at 7am as well, can you tell me where this story starts?

RICHARD:
Yes. I think Osman, you have to go back to the ABC programme, the Four Corners programme, on juvenile detention in the Northern Territory, where they focussed on the Don Dale Youth Detention Centre.

Archival Tape -- Unidentified Reporter #1:

“Welcome to Four Corners. The image you've just seen isn’t from Guantanamo Bay or Abu Ghraib, but Australia in 2015.”

RICHARD:

And one of the inmates that centre was a young fellow called Dylan Voller...

Archival Tape -- Unidentified Reporter #1:

“a boy hooded, shackled, strapped to a chair and left alone. It is barbaric.”

RICHARD:

...and I think it'd be fairly seared on a lot of memories that Dylan was the guy strapped in the chair with a hood over him, and trying to be managed by Northern Territory juvenile justice officers.

Archival Tape -- Unidentified Reporter #1:

“Most of the images secured by Four Corners in this investigation have never been seen publicly. They are shocking, but for the sake of these children, who are desperate for the truth to be known, we cannot look away.”

RICHARD:

And it caused a lot of outcry at the time, I think. Malcolm Turnbull was the prime minister, and he pretty quickly ordered a Royal Commission into juvenile detention.

Archival Tape -- Malcolm Turnbull:

“On Tuesday, I announced that the government would move to hold a Royal Commission into the treatment of children and young persons detained in the Northern Territory youth detention system in and in particular, the Don Dale Youth Detention Centre.”

RICHARD:

At the time, the news media had, you know, were also posting snippets of these stories on their Facebook pages, and allowing people to make comments about the stories and about Dylan Voller. And the net effect of that was that there were some pretty nasty things said about Dylan Voller in the usual sort of hyped up overwrought atmosphere that you get online in social media.

And now we have Dylan Voller suing, actually not suing the people that made the comments, but suing in defamation the news organisations that permitted the comments to be posted so that was, in a shorthand way, that's really what happened.

OSMAN:

So Dylan Voller decided to sue as a result of the abuse he was receiving online, which was both racist and deeply offensive; but rather than sueing the individuals or the social media platforms the comments were posted on, he decided to sue the news organisations who allowed the comments to be posted. Can you tell me how that case played out, and how it ended up in the High Court?

RICHARD:

Yeah, he brought it in New South Wales, and it was in the New South Wales Supreme Court and the judge at first instance, Justice Rothman. It was quite a discreet question. The discreet question was: are the news organisations publishers of third party comments? In other words, people's comments that they don't necessarily know they haven't even read. The comments may be completely irrelevant to the news snippet that was posted on Facebook.

So he held, yes, they are responsible because they have invited the comments. So in that way, they've facilitated the comments. So therefore, they are the publishers. That was upheld on the next level, the New South Wales Court of Appeal and the media organisations, led by Fairfax, as it was at the time, appealed to the High Court and the High Court has upheld all the lower court decisions.

So the essence of the issue was who is a publisher? This is what the Voller case was about, who is a publisher? And the ultimate decision of the High Court, endorsing the courts below, was that the mainstream media organisation that had the news snippet and the headline up on their Facebook pages was the publisher of the comments of other people. The Facebook people themselves, you know, the other tech platforms, they're not liable. Only the mainstream media organisations.

OSMAN:

Can you help me understand exactly what that means, Richard? So, if a news organisation posts an article about a politician to its Facebook page and amidst the thousands of comments that they get, one person makes a comment that is defamatory. That news organisation can then be sued and held liable for that comment, even though it was not made by them.

RICHARD:

That's correct. I mean, it's a really weird decision in a way when you consider that it's as you suggest, one comment may slip through inadvertently, and no matter how expeditious the news organisation is in trying to monitor it and remove adverse or defamatory or provocative or, you know, nasty comments, it may be well nigh impossible to do that 100% of the time. But nonetheless, the courts, all the way up to the High Court, have said: ‘That doesn't matter. You're still liable’, and you're still liable. Even though if you had a story, as you suggest, about a politician and comments are made, the comment may actually have nothing to do with the story, but you're still liable.

So there's no necessary connection between the original publication and the comment. There's no, maybe no knowledge of the comment. You may not have approved the comment and so on.

But it all harks back to a very ancient decision, from 1928.

OSMAN:

We'll be back after this.

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OSMAN:

Richard, we’re talking about a recent High Court judgement that found media organisations are responsible for the comments posted on their social media pages. How exactly did the court come to that decision?

RICHARD:

The High Court went back to 1928, where there was quite a famous defamation case called Web and Block. And it was actually a fight between, I think it was a fight between two lots of wheat growers, one in Victoria and one in South Australia. The wheat got spoiled in some way by mice, and one lot of farmers were suing another lot of farmers. And in the course of that, a lawyer wrote this defamatory memo about the other parties in the litigation. But because he was writing it on behalf of someone else, the someone else was liable. And it was all around this whole concept of principals and agents.

But you translate that into the contemporary world, where you can't really say that the relationship between a media organisation and people commenting on Facebook or Google or any other platform is the same as principals and agents. It just seems completely misconstrued and misplaced to have that analogy. But nonetheless, that was the basis of the High Court decision. They stuck with this 1928 thing in a very inflexible way.

OSMAN:

So the High Court was relying on this precedent that had to do with a dispute over wheat from back in 1928, when they were making a decision about the way that news organisations and Facebook work in 2021. What does that tell us, Richard, about both the law and the way it's interpreted by courts today when it comes to these issues?

RICHARD:

That’s correct. And what was disappointing, I suppose, about the High Court decision is that this was an opportunity to apply contemporary commercial and social and technological developments to the current idea of ‘what is a publisher?’ And instead, they just went back to an ancient precedent to determine what is a publisher.

OSMAN:

So as you've really outlined, it's a significant decision with significant consequences for the way that media and the ideas of speech operate in Australia. The High Court is the most Supreme Court in the land, there’s no appeal beyond this point. So what happens next? I mean, are there any suggestions that we might be updating the actual laws themselves to try and create a framework that makes sense for this age of the internet?

RICHARD:

So, it's never been resolved whether Facebook or Google or any of the other tech companies, actually publishers or not.

I mean, more and more news organisations which are not in the best, most flourishing financial position at the moment, need every device and advantage they can have in order to, you know, spread their stories. So to get an interest in the stories and to spread them and to have more readers engaging and so on. As you say, this is why social media platforms have become terribly important to the media.

Quite big companies are now disabling their Facebook pages. CNN, in Australia, its news function on Facebook has been disabled because they can't monitor the comments. I mean, to be able to monitor the comments. It requires a lot of quite a lot of resources and money. So it's not just newspapers that are liable. Now everyone's liable. Community groups and small organisations that run Facebook pages, or host Facebook pages can be liable for third party comments made on those pages.

So where that leads us, until there's some sort of reform, I think the obvious reform needs to be that the people that post comments should be liable for their own comments. I mean, that just seems to make sense.
But there's more stuff coming down the pipeline, so to speak. The High Court next year is looking at another case where the applicant is seeking to make the search engine results liable. If you go to Google and you look up something on Wikipedia, which is not published by Google. Google doesn't write Wikipedia, has nothing to do with it, only its search engines linked to it. So if there's something defamatory on Wikipedia, and Google search engine points to that, then Google is liable. That's the only result that you can imagine flowing from the Voller decision.

So if search engines, search results become liable for defamation; what's the response of the companies that provide search engine resources, huge ones like Google and so on? It's a pretty bleak prospect if they have to get out of the search engine business. It sort of slows down the development of the modern world .

OSMAN:

Hmm. Richard, thank you so much for your time.

RICHARD:

No, thank you Osman.

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OSMAN:

Also in the news today…

Archival Tape -- Scott Morrison:

“Australians understand. And they support the need to take action on climate change. So do I. So does our government…”

OSMAN:

Prime Minister Scott Morrison has formally announced that the federal government will seek to reach net zero carbon emissions by 2050.

Archival Tape -- Scott Morrison:

“Australia has already met and beat our Kyoto 2020 targets, and indeed Australia beat and meet our 2030 targets as well…”

OSMAN:

According to the government's plan, released on Tuesday, the net zero target will not be legislated, nor will it lead to an end in coal and gas production or exports.

Archival Tape -- Scott Morrison:

“It will not cost jobs, not farming, mining or gas...because what we're doing in this plan is positive things, enabling things…”

OSMAN:

The Prime Minister will travel to Rome tomorrow to attend the G20 summit before heading to Glasgow for the United Nations climate talks.

Archival Tape -- Scott Morrison:

“There'll be other countries that turn up in Glasgow and they'll say they have targets and they’ll say they have ambitions. But you won't find the same plan. You won't find the same detailed plan that we're releasing here today.”

OSMAN:

And a Royal Commission has recommended that Crown should not lose its license to run Melbourne’s casino.

The eight month inquiry into Crown found a number of legal and ethical breaches that the commissioner described as ‘disgraceful’.

The company has been given two years to reform itself under supervision.

I’m Osman Faruqi, this is 7am, and Ruby Jones will be back tomorrow.

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