The lawsuit that led to the high court ruling that publishers could be held liable for allegedly defamatory comments on their social media pages has been settled, leaving key legal questions unresolved.
Dylan Voller had sued the Sydney Morning Herald, the Australian, the Centralian Advocate, Sky News Australia and the Bolt Report over allegedly defamatory third party comments on their Facebook pages. The comments were in response to articles about Voller, whose mistreatment in the Northern Territory’s Don Dale youth detention centre led to a royal commission.
Guardian Australia has confirmed with Voller’s lawyers and Nine that the case was settled last week. The terms of the settlement have not been disclosed.
The high court judgment on a preliminary question in the case, handed down in September, found the media outlets could be held liable for comments by third parties on their Facebook pages.
The judgment sent shockwaves through media companies in Australia, some of which responded by dedicating more resources for comment moderation on social media, or simply shut off their comments on some posts. CNN pulled its Facebook presence from Australia as a result.
The Tasmanian premier, Peter Gutwein, also announced he would shut off comments for some posts on Facebook as a result of the hearing.
The High Court case was concerned only with whether the media companies could legally be held liable as publishers and the case was sent back to the lower court where the companies could have sought to mount defences to the publication including innocent dissemination.
While Voller’s case has been settled, the high court ruling on liability for third-party comments stands.
High-profile defamation lawyer Sue Chrysanthou revealed the Voller case had been settled on Tuesday during a Senate committee hearing on the government’s proposed Social Media (Anti-Trolling) bill. Chrysanthou said the outcome meant it was now impossible to know if the media companies could have won the case based on their defences in the supreme court.
“The only question in the high court was whether the media organisations were publishers. They possibly still could have won that case if they demonstrated that their publication was innocent.”
The bill, introduced in response to the September high court ruling, would shift liability from page owners to the social media platforms if those platforms do not assist those who have alleged to have been defamed to unmask anonymous commenters.
Chrysanthou described the proposed bill as “misconceived” and said it should be redrafted.
“This bill is a violent assault on the tort of defamation by the commonwealth, for which no rational basis or reason has been provided,” she said.
She said the bill is “providing immunity to large corporations that make money hosting forums where defamatory publications are made”.
“These corporations do not need immunity. Just as with the local bird watching group, they can make a choice when it comes to the ongoing publication of defamatory material,” she said. “If they take it down after being put on notice, then they retain their innocent dissemination defences. If they choose to leave it up, then they are held accountable as they should be.”
Over the course of the two hearings held by the Senate committee in the past week, most speakers have argued against the bill, stating it has nothing to do with cracking down on online trolling, and separately that the bill could ultimately make defamation cases more expensive with worse outcomes for those allegedly defamed.
The Law Council of Australia has argued that changes should be reserved for outcomes of the working group of the attorneys general, to ensure legislation is the same across the federal, state and territory jurisdictions and not piecemeal.
High-profile victims of online trolling Erin Molan and Nyadol Nyuon have also told the inquiry that defamation action was not feasible for most people due to the cost involved of mounting a legal case.
Chrysanthou said the proposed bill would make the situation worse for people because with a shield from liability, page owners would no longer face defamation risk for refusing to remove defamatory comments, and the platforms would also have a defence if they ask the anonymous user to hand over their information even if they refuse. It would mean ultimately the comment would stay up unless the commenter decides to delete it.
