High Court ruling KILLS free speech online in Australia

Millions of individuals, community groups, businesses, news broadcasters, and publications faced with paying damages over anonymous trolls.

High Court ruling KILLS free speech online in Australia
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On Wednesday it was decided that social media account holders will become legally responsible for third party comments posted on their sites after the High Court upheld an earlier ruling.

Any entity with a social media account or page (like Facebook) is considered ‘liable for adverse material in the comments sections’.

That means you will be held accountable for anonymous trolls abusing people online – not the person actually posting the vitriol.



Essentially, it implies that individuals are the publishers of third party content on their pages, even though they have no control over what is published – this is instead of police chasing down the actual anonymous publishers or the billion-dollar platforms that host the content.

Millions of individuals, community groups, businesses, news broadcasters, and publications can now be taken to court and faced with paying damages over defamatory or criminal conduct.

Anyone with a social media account like Facebook will have to close their comment sections to the public or risk fines and imprisonment for the replies. To be clear, these are comments posted by strangers without consent or knowledge of the account holder.

In reality, this automatically ends open discussion for news organisations that use social media as a way to interact with their audience. They will still be able to put up their videos and articles, but it has become too risky to allow anyone to discuss the content online.

For individuals, it means connecting with friends or inviting open discussion on innocent topics like TV shows has become an invitation for litigation.

The decision demonstrates an utter lack of practical knowledge by the High Court regarding the function of social media and has endangered ordinary people.

If anything, the ruling has given anonymous trolls the ability to cause mass chaos and harm by intentionally incriminating innocent parties. A law that does this cannot be called anything other than irresponsible and wrong.

What’s to stop individuals hiring anonymous trolls to deliberately post defamatory comments to settle a grudge or see a news company ruined in court?

Many agree, with an urgent demand issued to reform Australian defamation law to protect account holders from vexatious litigation.

This highlights the need for urgent legislative reform, and I call on Australia’s attorneys-general to address this anomaly and bring Australian law into line with comparable Western democracies,” said Michael Miller, News Corp Australasia Executive Chairman.

While the consequences of this ruling are far-reaching, the original case involved Dylan Voller, a former Don Dale Youth Detention Centre inmate, and a group of major media companies including News Corp Australia and Nine Entertainment.

Voller launched legal action against the news companies over anonymous third party comments posted under their posts. Facebook did not have the function for page holders to disable comments at the time.

In this case, the news companies did not publish the third party content, it was hosted by Facebook.

As a platform, Facebook enjoys a legal grey area under Section 230 of the US Communications and Decency Act where it remains immune from legal responsibility regarding third party content posted on its site. In return, the platform is not supposed to exercise any form of publishing privilege except discretionary removal of harmful content under the Good Samaritan Clause.

The justification for the original ruling is that these news publications ‘participated’ in the defamatory anonymous content, even though it was done unknowingly and in an environment beyond their control. The appeal was dismissed on Wednesday.

Because the ruling failed to limit its decision to news media, it is quite possible that this ruling on an insular issue will now destroy the social media landscape for everyone.

Silencing discussions under news articles is a major step toward censoring public opinion. The court’s ruling cancels out the natural balance of public feedback that often highlights inaccuracies in reporting or broadens the story for the benefit of everyone.

It has long been assumed that abusive content posted by accounts should be the responsibility of the social media company which hosts those accounts. Users who violate community safety guidelines are routinely removed by the platform.

Interestingly, the Silicon Valley giants who host (and profit) from the third party content are not liable for the users on their platform.

Even the nuanced approaches suggested by two of the seven judges during the trial lack awareness of social media’s operation. Large accounts receive hundreds, if not thousands of comments an hour. Even if the account holder is notified of offensive content, it is unreasonable to expect them to remove it in a timely fashion – especially if we are talking about ordinary people and not corporations.

In addition, empowering individuals and corporations to remove third party comments on social media violates the conditions of each poster’s account. They are meant to operate within the rules of the site and the site is supposed to be the one deciding if their content violates the site’s community standards – not the whims of page holders.

This will open up a major can of worms for Silicon Valley. If they do nothing, the entire concept of their business model is set to collapse. With no open discussion, there is no point to the platform.

On the other hand, if they choose to fight the Australian courts to protect their business, they will be forced to prove that they are platforms, not publishers despite the editorial decisions they have been making of late.

In the end, the safest thing will be to let social media fall silent and that will be a victory for the government and a major defeat for free speech.

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  • By Avi Yemini

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