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(Image: Unsplash/Con Karampelas)

Early in the hearing for the defamation case Voller v Nationwide News, Justice Stephen Rothman joked to barrister Tom Molomby SC: “Remind me, Mr Molomby, Facebook is something on the internet, is it?”

Molomby replied that when it came to Facebook: “I would describe myself as someone in the sandpit with the alphabet building blocks.”

Hah. It’s all fun and games until media outlets are found liable for comments written by random people on Facebook under Australia’s restrictive defamation laws. 

And the stakes are high: the outcome of this case could radically change how news outlets use Facebook.

To recap: we first met Dylan Voller when he was shown wearing a spit hood and restrained to a chair in an ABC Four Corners story about mistreatment in youth detention. He became a public figure, and sometimes a media punching bag, and in 2018 filed proceedings against Fairfax Media, Nationwide News and the Australian News Channel.

A question of liability

The twist, though, was that Voller sued over Facebook comments written by readers, not copy written by journalists. And in a 2019 pre-trial skirmish, Rothman found the media companies were considered “publishers” of these comments.

An appeal judgment last week softened the blow for the media outlets, but did not exonerate them. The court agreed the outlets are publishers — finding they had “encouraged and facilitated” the comments — but also reopened the door to a defence of “innocent dissemination” which could allow media to avoid liability at trial.

The appeal court also set aside a controversial finding by Rothman about how Facebook operates, saying his conclusion that it is “possible to hide all comments on a public Facebook page” might be a misunderstanding.

One thing clear from the hearing is that there was significant confusion about what Facebook allows media companies to do. This was exacerbated by a number of things, including a lack of comparable cases and the interchangeable use of words such as “blocked” and “hidden”.

The only expert witness to testify, and on whose evidence many of Rothman’s conclusions were drawn, was Ryan Shelley, who is the managing director of social media and digital marketing agency Pepper It.

Shelley’s credentials, according to his affidavit, include 15 years of working in digital marketing and social media, and 11 with Facebook.

He made clear that you cannot disable comments altogether on a public Facebook page. He proposed a workaround under which media outlets could add 100 commonly used English words to a filter list, which would then automatically hide comments containing those words from most users.

Shelley’s expert report stated that page administrators could “employ the workaround described to effectively hide all comments by default”.

Move to strike

Barrister for the media outlets James Hmelnitsky SC tried to strike out this and other paragraphs, arguing they went beyond expert evidence about Facebook’s tools. But Rothman allowed them.

Under cross-examination, Shelley conceded that some comments could slip through the filter, such as image-only comments, one-word comments using an uncommon word, or misspelt words.

But Rothman stated in his judgment that page owners may “block all comments on the public Facebook page totally” or “hide all comments on the public Facebook page”.

Last week the appeal court said this finding should “fall away” as it “may have resulted from a misunderstanding of the evidence”.

Media companies say their lack of control over the comment section means Facebook, not them, should be liable.

Shelley did not respond to questions from Crikey.

The media defendants are considering a High Court appeal. Other issues touched on in the hearing — such as whether the media published stories on Voller knowing he would be exposed to a social media free-for-all from which they may gain commercial benefit — are likely to be further duked out when the case goes to trial.

In retrospect, it should have been clear from an exchange towards the end of the hearing that the comment issue had not sunk in. As Hmelnitsky delivered his closing argument, he mentioned the NSW Supreme Court has a public page. 

“It doesn’t allow comments,” Rothman said, raising eyebrows in the courtroom. Hmelnitsky replied that it certainly does: “It can’t be turned off, your honour.”

Of course the Supreme Court doesn’t publish judgments on Facebook for commercial benefit. But regardless, it doesn’t appear to monitor comments.

Those on the post sharing the Voller appeal decision are hilariously tame. “I somewhat disagree,” wrote one person.

But if you scroll to the post sharing Saturday’s last-minute judgment authorising Sydney’s Black Lives Matter march, something very familiar emerges. “What an absolute INSULT to our brave diggers. They couldnt march but these thugs can,” was one. Another: “You weak gutted shit for brains.”

In those posts the problem — shared by media outlets desperate to avoid liability and the people they write about who are sometimes crushed by online abuse — becomes as clear as day.