Aboriginal Boy Gassed And Tortured, Then Defamed, Has Court Win Overturned On Appeal

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A young Aboriginal man at the centre of a youth detention scandal in the Northern Territory, in which he was gassed and tortured by guards, has had a major court victory overturned on appeal. Hannah Marshall from Marque Lawyers explains.

News outlets can exhale after the Voller defamation appeal decision, at least for now.

The case is pretty well publicised. We wrote about the primary judgment here. It’s novel because Dylan Voller is arguing that the news outlets which host Facebook pages are responsible for defamatory third party comments on those pages.

Normally, you’d see an action against the author of the comments, or the platform itself.

The parties asked the court to answer a separate question before the matter progressed towards a final hearing. The question was are the news outlets ‘publishers’ of the defamatory comments? Publication is an element of a defamation claim.

If the answer was no, the news outlets win and the case is over. If the answer was yes, then the case would proceed and all the other issues like imputations and defences would be argued at the final hearing.

The first instance decision threw the industry into a tail spin. The judge said yes the news outlets are publishers in the broad sense required to establish a defamation claim. He went on to class them as ‘primary’ publishers, because they facilitated and encouraged the comments, and because they could theoretically pre-moderate them by using a system of filtering and releasing comments.

The finding that they were primary publishers was huge, because it rendered them liable from the moment of the comment’s posting and meant that they could not rely on an innocent dissemination defence prior to being notified of the defamation.

For the most part, platforms and content hosts have only been liable after receiving notification of the defamatory content up to now. That meant notice and takedown procedures were sufficient to manage defamation risk. But under the first Voller decision, all that went out the window.

Hence the appeal. The appeal court upheld the finding that the news outlets were publishers in the broad sense. But they stopped right there. That was the only question put to the court, and they said the primary judge should have gone no further than that.

That means the news outlets can still argue that they were not primary publishers and rely on an innocent dissemination defence at the final hearing. The fact of them being publishers in that broad sense only is far less controversial, and far more consistent with other cases.

With that part of the earlier ruling set aside, things are looking a bit rosier for the news outlets.

The primary judge’s logic was questionable and there’s a decent chance of a different outcome at a final hearing. Plus there are defences to argue, including a protection under the Broadcasting Services Act which says defamation laws can’t make internet content hosts liable for content when they weren’t aware of its nature.

In practical terms, the appeal decision means that the law does not require the strangled system of filtering and releasing comments proposed by the primary judge. It may yet do so, but we’re betting against it.

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Hannah Marshall

Hannah Marshall is a partner with Sydney law firm Marque Lawyers, and a regular contributor to New Matilda.

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