Civil Law

By Ivy Loncar

10.09.21

Voll-Er Puts a Stop to Troll-Ers (And Media Companies)

Former Don Dale Youth Centre detainee, Dylan Voller reportedly feels a sense of ‘vindication’,[1] following the landmark High Court decision on Wednesday this week.

It is likely that this feeling is not shared by the media outlets that lost the appeal and are now processing the implications that this decision will have on the future of social media.

Voller first came into public focus in 2016, after ABC’s Four Corners broadcasted the mistreatment that he had experienced whilst in detention on national television. This documentary titled ‘Australia’s Shame’ depicted Voller wearing a spit hood and sparked significant outrage, prompting a Royal Commission into youth detention.

However, not everyone was sympathetic to Voller’s plight.

After videos of Voller were posted to Facebook by media outlets, internet ‘trolls’ took to the comments, alleging that Voller had committed a range of offences for which he had not been accused.

Voller vs Media Giants

Voller responded to the harmful comments left on Facebook by suing the three media giants of Fairfax Media, Nationwide News and Sky News for their ‘publication’ of defamatory materials.

The action brought by Voller posed questions as to whether a media outlet can be considered a ‘publisher’ of comments left by third parties. The media companies fought back, arguing that without knowledge of the defamatory materials, they could not be considered ‘publishers’.

You can’t graffiti on my (Facebook) wall

Fortunately for Voller, on Wednesday the High Court rejected the arguments raised by media outlets. In a ground-breaking five to two decision, the majority held that a media outlet’s participation in ‘facilitating and encouraging’ defamatory comments could result in liability for the outlet as a ‘publisher’.[2]

The High Court analogised defamatory comments posted by third parties on a Facebook wall, to graffiti on a physical wall. This comparison means that media outlets are now liable for the publication of defamatory comments, just as a building occupier would be liable for failure to remove defamatory graffiti.

Hateful comments be gone!

One of the two dissenting judges, Justice Steward, stated that media companies have ‘no actual means of controlling the contents of such comments’.[3] This may be true, however, since the commencement of this trial, Facebook has developed a feature which now enables comments to be disabled on Facebook posts.

This feature raises the possibility as to whether this landmark decision will have a chilling effect on the future of social media comments.

What will this mean for the future of social media?

In short, it has the potential to mean A LOT for the future of both posters and commenters.

Media outlets are worried. Channel Nine has spoken out about this ‘disappointing’ ruling, stating that this decision will have significant ‘ramifications for what we can post on social media in the future.[4]

This decision poses questions as to whether commenting on posts will now be a thing of the past. Is it now too big of a risk NOT to disable comments on Facebook pages?

Will this decision lead to the onslaught of defamation proceedings against ‘publishers’?

Only time will tell.

Putting the future implications of the decision aside, Wednesday’s High Court decision represents a long-awaited sense of justice for Voller, who has been on the wrong side of the law since the tender age of 11.

Whilst the High Court has not yet considered whether the comments posted about Voller were in fact defamatory, Voller’s legal team has stated that this is a ‘historic step forward’.[5]

Indeed. This is a very historic decision for both Voller and for the future of social media.

[1] Rachel Knowles, ‘High Court ruling vindicates Voller’, National Indigenous Times (Web Page, 8 September 2021) <http://nit.com.au/high-court-ruling-vindicates-voller/>.

[2] Peter Parks, ‘Australian High Court rules news outlets can be held liable for comments under their social media posts’, RT World News (Web Page, 8 September 2021) <Australian High Court rules news outlets can be held liable for comments under their social media posts — RT World News>.

[3] Ibid.

[4] Ibid.

[5] Parks (n 2).