Defamation law reform is in the news after the High Court found Facebook page owners, in this case media outlets, are responsible for the words of Facebook commenters who comment on Facebook owners’ posts.

It effectively means the Court’s ruling affects all Facebook page owners who can now be legally held liable for defamation from comments posted on their page.

We would hope that Australia’s defamation laws will be amended to allow a grace period for page owners to remove defamatory comments, as a result of the Court ruling.

The High Court dismissed an appeal by some of Australia’s biggest media entities including The Sydney Morning Herald and The Australian, finding they are the publishers of third-party comments on their Facebook pages.

Former Northern Territory detainee Dylan Voller wants to sue the companies in the New South Wales Supreme Court over alleged defamatory comments posted on their Facebook pages.

However the case had stalled in a dispute over whether the media outlets were the publishers of the material, which is necessary for a defamation ruling.

The High Court has now found that, by running the Facebook pages, the media groups participated in communicating any defamatory material posted by third parties and were therefore legally responsible for the comments.

The ruling is a defamation game changer and a real wakeup to all Australians who have a social media page with comments enabled.

In effect it means the person owning that page is legally liable for any comments posted to it. It’s going to be a real test of our cyber and defamation laws. 

Another key factor is that the defamation occurs at the time of posting, not just after notification to the page owner of comments posted to the owner’s page.

So you could have a Facebook page and someone trolls it leaving defamatory remarks about someone and even though you may not yet know about these remarks, the defamation will be deemed to have occurred.

In its decision on the Voller matter, the High Court rejected the media companies’ argument that, to be a publisher, an outlet must know of the relevant defamatory matter and intend to convey it.

The court found that, by creating a public Facebook page and posting content, the outlets facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users, and they were, therefore, publishers of those comments.

This decision now clears the way for Mr Voller’s defamation action to proceed. The Court’s decision did not relate to the defamation but focused on whether the media companies were liable for comment posted on their social media pages.

The decision will have wide reaching consequences for businesses, organisations, sports bodies and individuals with pages on social media.

Trolls and nasty keyboard abusers usually try to hide behind their anonymity in a flame war and use other people’s pages to share their abuse. If the Court is making the page owner liable it’s going to see tougher crackdowns and for media companies, more intensive and timely moderating of posts.

Individuals will also need to be doubly wary about who can post comments to their pages.

It should be noted the High Court decision was not determining blame in a defamation matter but inevitably this sort of decision may well generate a whole slew of defamation actions now.

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