In a significant pronouncement, the High Court of Australia, which is the country’s apex court, has deemed publishers of news on social media to be responsible for the comments posted by other users on the post, as publishers of the comments.
The bench conforming to this decision was a majority bench of Chief Justice Kiefel and Justices Keane and Gleeson. The dissenting judgements by Justice Edelman and Justice Steward expressed concerns that the media publishers will become liable for comments by third parties which may be unconnected to the content posted.
The implications in Australia could be that media houses will either start reviewing the comments before they appear on the post or they will turn off comments altogether.
The appellants, Fairfax Media Publications, Nationwide News and Australian News Channel faced a defamation suit filed by an individual who claimed that as these media channels posted news stories about his incarceration in a juvenile justice detention case, a lot of third party Facebook users posted comments about him on the same, which were of a defamatory nature.
The High Court of Australia upheld the Court of Appeal order which held that “the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.”
The court’s observations
Since this was a case of defamation, the court examined the case in the background of tort of defamation. Hence, publication in cases of defamation is held to be a ‘bilateral act’ whereby publication is complete when the matter is accessed by a third party in a comprehensible form. The court relied on a judgement whereby it was held that a person is a publisher of defamatory matter if “by an act of any description” the person “intentionally assisted in the process” of communicating the matter containing content conveying the defamatory imputation to a third party, regardless of whether the person knows that the matter contains that content.
The court also held that an innocent disseminator is a publisher according to the common law of Australia. The court drew an analogy with live television and talk back radio for comments on social media and held that “the operator of an “electronic bulletin board” posts material with the intention that third parties will comment on the material posted, the operator cannot escape being a publisher of the comments of those third parties”.
The court thus dismissed the appeals, and stated that each of the news media intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page and the posts on the page encouraged and facilitated publication of comments from third parties. By this inference, appellant news media have been deemed to be publishers of third party comments.
In the Indian context
Nasty and vile comments on posts by news media on social media are a common occurrence in India and a lot of users can be seen engaging in hateful banter in most cases. The news media is not held responsible for such comments, which in turn has encouraged the spread of hateful content through such comments. The time is probably ripe for an Indian court to take cognisance of this order of the Australia High Court to encourage the news media to be more responsible in their social media engagement, in order to limit hate content that already flows unchecked in India.
This will encourage news media to be responsible in their social media engagement, and probably turn off comments on their posts or regulate the same so that there is a curb on hate content on social media platforms.
The complete order may be read here: