Defamation By A Thousand Likes

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Almost 80 years ago an English man named Byrne sued a man named Deane. Deane owned a golf club, and someone had put a nasty post up about Byrne on the club noticeboard. Byrne wanted it taken down. Deane failed to do so. Despite not having actually written the post, Deane was found liable in defamation as a publisher.

Decades on this case is still being invoked, but in a very different way — the controversial area of social media liability in defamation and contempt of court cases. Last week the death of Thomas Kelly raised precisely this issue, as Twitter and Facebook users made vocal accusations, some of which may well have been in contempt.

With each leap in technology the "noticeboard principle" has been modified and adapted to suit the medium; it’s been applied to radio broadcasts, to live TV feeds, Internet service providers and web discussion forums. That brings us to the present impasse with regard to social media.

Most recently in Australia, the principle was applied in a social media contempt of court case in ACCC v Allergy Pathways. The case was heard in the Federal Court in 2011 before Justice Finkelstein. Allergy Pathways operated a Facebook page, and failed to remove contemptuous comments. The company was found to be in contempt of court, but in his reasoning Justice Finkelstein also referred extensively to defamation cases and to the principles of publication as outlined in the noticeboard cases. While not necessarily binding in defamation, the case sets a strong precedent for the liability of social media users in contempt cases.

But the issue raises serious questions about the application of this principle to ordinary social media users and the impact it could have on net freedom. Consider the following scenario: a Facebook user makes a defamatory post on another user’s wall. As soon as they make that post the other receives an email notification of the comment — this means they have actual knowledge of it. The user doesn’t remove the post. They have the capacity to do so, because they control their profile. Facebook has also given users the ability to vet comments before they appear on their wall.

By applying the noticeboard principle there’s a strong argument to be made that in failing to remove the post after they knew about it, they can be held liable as a publisher. While a merely passive role will not constitute publication, the failure to act to remove the post, once there was actual knowledge, could be considered consent or approval of the comment.

Even if a user "likes" a post, they could still be liable as a publisher if that post is found to be defamatory. When a user likes a comment they signal approval or promotion of the post. The way Facebook currently operates, the "like" will also appear to other users in the scrolling ticker on the top right corner of the web page. While this may seem like a minor act, it could be sufficient for a finding of liability. In the Canadian case of Crookes v Newtown it was held that while adding hyperlinks to content that is defamatory is generally not publication, if a user indicates some form of approval or promotion of the content this could suffice.

The issue raises complex policy issues. It’s true that social media users have the same control as broadcasters over the content posted on their wall. But should social media users be treated in the same manner, and held to the same standard of vetting, as corporate broadcasters? And what could be the impact on net freedom?

So far one of the few judgments to consider these policy considerations comes from Hong Kong, where the High Court recently ruled in Oriental Press Group v Fevaworks that the hosts of a web forum were not liable as a publisher. Justice Fok discussed at length the case law in Australia, the UK and Canada, and drew attention to a number of policy points in his judgment:

"To impose legal responsibility on the host of a website forum for defamatory postings as primary publisher might well, as I have already observed, result in the closure of website forums. To the extent that this would suppress the thousands, if not millions, of non-defamatory posting that might be made to such forums, it is strongly arguable that this would be a disproportionate interference with freedom of speech."

He also considered the differences between corporate broadcasters and individual users of social media, and how this should be reflected in findings about liability: it would be an unjust application of these principles if social media users were required to be constantly vetting comments of groups they moderate.

While Allergy Pathways is persuasive, the position in Australia is far from settled. As the internet has clashed with older legal doctrines in intellectual property, privacy, defamation and contempt, judges in Australia have been reluctant to alter the legal doctrines themselves — instead they’ve adapted or appropriated them based on the existing principles. The question is whether Australian courts can come to a settled position on social media liability, and whether they will take into account the nature of the medium, and the potential impact this could have on frank and open discussion online.

If a decision is made against an end user of Facebook as a publisher the effect on internet freedom could be devastating. Would users create Facebook group pages about issues they were passionate about discussing, with the threat of liability looming over them if the discussion got out of hand? Many users may be reluctant to start such pages — and if they did so, they would find themselves vetting a large number of comments.

Given that it’s unclear just how far the noticeboard principle will ultimately extend, companies and organisations that find themselves in an uncertain legal position may be reluctant to press the matter, fearing lengthy litigation. Nothing stifles free speech more than a legal threat on an undecided point of defamation law.

The axe will fall eventually, and some unwitting individual who "liked" a post they thought was funny will be made an example of. Until then, make sure you watch what people post on your wall.

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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