Social media is now an integral part of people’s lives. It is a source of news, entertainment, gaming and socialising across the world. However, constant information overload, combined with the anonymity of online interaction can create toxic cyber-environment. It the era of shooting first and asking questions later which is especially concerning in relation to the law of defamation.
Defamation is the act of making false claims about a person to damage their character and reputation. A person can be defamed verbally or in writing, called slander and libel respectively. On social media, disparaging, judgemental and ultimately false comments are rife since users regularly post their opinion without knowing all, or often, any of the facts.
This issue was highlighted in 2021 when Mr Dylan Voller sued a number of prominent news outlets, over allegedly defamatory third party comments made on their respective Facebook pages. The comments were in response to articles written about Mr Voller, whose mistreatment in a Northern Territory youth detention centre led to a royal commission and the High Court found that media outlets could be held liable for comments made by third parties on their Facebook pages.
Similarly in the abduction of Cleo Smith, the Seven Network incorrectly identified Terrence Flowers, a 27-year old man, as the alleged kidnapper and published a photo of him in news broadcasts, online articles, tweets and Facebook posts. After Channel Seven became aware of the mistake, an apology was issued to Mr Flowers and all of the posts were promptly removed, however Mr Flowers had already taken legal action against the network. He claimed that his character and reputation were gravely impacted and the national broadcast had now made him the subject of hate around the nation and the world with the Supreme Court of WA ruling in his favour.
The Australian government has since responded to the Voller decision by proposing the Anti-Trolling Bill. The aim of the bill is to protect page administrators by shifting the liability to the social media platforms themselves, when third-party defamatory comments are made. However, this has been severely criticised by defamation barrister Sue Chrysanthou SC, because page owners would no longer face the risk of defamation, for refusing to remove defamatory comments as they are shielded from liability. The platforms would also have a defence if they ask the anonymous user to hand over their information even if they refuse, meaning ultimately the comment would stay up unless the author decides to delete it.
Have you noticed recently that News outlets on social media have switched off their commenting? This is due to cases like Voller and Flowers. The high court ruled that Australian media companies can be liable for not only their defamatory comments but third-party comments posted on their Facebook pages.
The conclusion to be drawn from all of this is that the proposed bill highly unlikely to be passed because it absolves everyone from liability. Therefore authors on social media, be they major news networks or internet trolls fishing for controversy, need to be alert to the impact that their false comments have, since they could very well be successfully sued for defamation.