Big news: CNN has blocked people in Australia from accessing its Facebook pages. Anyone having deja vu from the times when first Google, and then Facebook, blocked news in Australia? The CNN decision comes after a recent High Court ruling that found news publishers are legally responsible for defamatory comments that *other users* make on their social media posts. While this might seem like a niche news story, holding the media responsible for defamation in Facebook comments will impact you – and it’s probably is already.
Time to get your head around it – here is the need-to-know.
What started all of this?
You may remember Dylan Voller. In 2016 he was at the centre of the Four Corners investigation into the abusive treatment of young people in juvenile detention centres. As is quite standard practice in the media industry, many other news outlets including the Sydney Morning Herald, The Australian and Sky News Australia, ran articles about the report. These articles were shared to their Facebook pages – also standard practice – where users left comments about Voller on posts and some of these comments were potentially defamatory.
In 2019, Voller sued two news publishers for defamation – News Corp (The Australian, Sky News Australia) and Fairfax Media (SMH, now owned by Nine Entertainment Co). The lawsuits were not about the articles they had written, but because of the comments left on the Facebook posts of those articles. This led to a legal challenge about whether the media outlets were responsible for ‘publishing’ the comments.
Voller won the legal challenge, and while the media outlets appealed the decision, it was upheld by the High Court in early September 2021. This means the Court believes publishers can be held legally responsible for defamatory comments that anyone makes on their Facebook pages.
It’s important to note that the actual defamation lawsuits have not happened yet. All of this was to simply to determine if the media could even be sued. The High Court has decided this can happen.
CNN has decided Australians “will no longer have access” to its Facebook pages, after the recent court ruling which found publishers have defamation liability for Facebook comments
— Josh Butler (@JoshButler) September 28, 2021
Rather than moderating all the comments, CNN is just cutting off Australia https://t.co/NqAMamzP4I
How would media protect against defamation from Facebook comments?
According to the court’s interpretation of the media laws, a publisher’s responsibility applies as soon as a comment is posted. This is a major aspect that Australian media outlets are pushing back against, because even heavily moderating comments will not protect them.
It doesn’t matter if a moderator is able to quickly delete a defamatory comment – if there is proof it was published for even one second, it counts. This leaves them with two options:
- Turn off comments on posts for negative, critical or risky stories (or all stories)
- Don’t share those ‘risky’ stories to social
What are the implications of this decision?
To be clear, the media can still report on the news the same way as they were before. This decision only affects how they share that content on social media.
For major news outlets, like CNN, they may decide the legal risk of publishing to Facebook in Australia is too high. It’s possible that other media publishers will also decide to withdraw from Facebook and other social media platforms, or turn off the comments altogether. For smaller, independent outlets (like Zee Feed!) who don’t have legal teams on-call, it will discourage them from covering high profile people and circulating those stories on social media. You don’t have to look far for examples of where and how this legal precedent could be abused by the powerful: Peter Dutton is already suing a private citizen for defamation over a Tweet.
This decision will affect young people in Australia more than most. The 2021 Digital News Report found that 54% of Gen Z Aussies say that social media is their main source of news. If news outlets decide to exclude certain types of stories from social media, anyone who relies on social media will be left out of crucial conversations.
Other businesses and public figures are also affected by the laws. Tasmanian Premier Peter Gutwein recently announced that FB comments would be turned off for certain posts on his page. Social media is one way that politicians can make themselves accessible to their constituents and communities – turning comments off makes it more like a TV broadcast or press release, with no opportunity for questions or feedback from the public.
Are there any positives to this situation at all?
If you’ve ever been in the Sky News or Daily Telegraph comments section, you’ll know there is a silver lining to all of this. Having more moderation of Facebook comments is a good thing, as they can often get out of control. Toxic and dangerous social media comments and trolling are much more likely to be targeted at women and people of colour – news outlets should be playing a bigger role in limiting this.
But is putting the media at greater defamation risk over cruel Facebook comments made by others the right way to combat trolling? Do Facebook and other social media platforms provide strong enough tools to help users and the media control what comments are left on their pages?
The laws governing media in Australia are old and outdated. They come from the era of traditional era which only allowed for one-way communication – TV, print, radio. These laws don’t apply well to the era of digital and social media, which allow two-way communication with the audience. This ruling could be the push we need to update the regulation of the media sector, bringing it into the 21st Century.
So what happens next?
The actual defamation case between Voller and the news publishers may or may not go ahead – we’ll have to wait and see.
Many news publishers will be reviewing their social media policies, so you’re likely to see changes in your feeds soon.
For young people, it’s time to re-evaluate where we get our important information from. If you’re someone who relies on social media to be informed, maybe start to make a habit of going directly to the source, or signing up to the email newsletter of your favourite news site. The digital media landscape in Australia is changing quickly – throwing support behind trusted sources is the best thing you can do now.