Dylan Voller case puts online defamation in the dock

Voller came to national prominence — and the attention of social media trolls — when he featured in a 2016 Four Corners program about the detention and mistreatment of Aborigines at the Don Dale Youth Detention Centre in the Northern Territory.

Instead of pursuing the trolls who posted comments about him on Facebook, Voller is trying to sue media organisations that knew nothing about those comments until third parties added them to public Facebook pages operated by the media.

There are two principles at stake here. If, for the sake of the argument, it is assumed that Voller was defamed, he has suffered a wrong and deserves a remedy. Yet in this case, that principle seems to have been given priority over an equally important idea.

There is a real risk that Voller’s remedy could come at the expense of the wrong people: media organisations that did not write or post the material in question and were required by Facebook to allow anyone to add comments to their public pages.

Such an outcome would defy common sense but Voller’s legal team has already persuaded the NSW Court of Appeal that the media organisations were the real publishers of that material — despite the fact that they knew nothing about it and therefore had no intention of publishing it.

The two great media houses, Nine Entertainment and News Corp Australia (publisher of The Australian) will be in the High Court on May 18 making a last-ditch attempt to overturn that Court of Appeal ruling.

If they fail, they could find themselves in a truly bizarre position — forced to choose between defending material they did not write, did not post and knew nothing about; or handing Voller a bucket of money to make amends for damage inflicted by others.

The comments at the heart of the case were added to the Facebook pages of The Sydney Morning Herald, The Australian, The Centralian Advocate and Sky News Australia’s The Bolt Report.

On one level, this case is about whether a publisher, for the purposes of defamation, must intend to communicate the matter in question. If intention is required, the media will only be liable for its own actions, not those of others.

But on another level, this case highlights the need for reform to equip defamation law for the reality of online publication and the scourge of trolls.

Most trolls hide behind the cloak of anonymity which can render defamation law useless and might explain why social media has become such a lawless sewer.

So how to expose these people? This is where Mark Speakman, the NSW Attorney-General, comes in. He issued a discussion paper this week that contains an option that might make it possible for people like Voller to track trolls down and hold them to account.

Speakman’s idea is to provide a very strong incentive for online organisations to identify in advance those who use their services. It would provide legal certainty for those who do not engage in defamation, while making it easier to identify wrongdoers.

This is based on section 5 of the British Defamation Act which gives website operators a “safe harbour” from defamation if they can show they did not post the defamatory material and they have enough information about the identity of the wrongdoer to enable a complainant to sue or seek a quick remedy.

The discussion paper says most social media services have the contact details of their account holders and this places them in a good position to put complainants in touch with the originator of impugned material, or to pass on the complaint to the originator.

It recognises that the administrators of public Facebook pages are unlikely to have information about the authors of defamatory material but it says the safe harbour defence could apply whenever they have the ability to connect a complainant with the originator of defamatory material.

This procedure would create protection from defamation for certain organisations. But it would also focus liability back where it belongs — on the originators of defamatory material. The protection given to intermediaries would be a reasonable price to pay for ensuring Voller’s case is the last of its line.

Normally, court rulings in defamation cases send a signal to wrongdoers about the cost of their misconduct. But if the High Court sides with Voller what message would it send to the trolls? They will continue to operate with impunity, safe in the knowledge the courts have decided that others will pay for their misdeeds.

The real losers would be the 15 million Australians who are Facebook users. If Voller wins, submissions filed with the High Court on behalf of the media organisations warn that anyone who uses Facebook or other social media services could be found to be a publisher of material posted on their page by third parties, even if they are unaware of that material.

That means community groups, charities and individuals would be at risk of being sued for defamation over comments posted on their social media pages without their knowledge.

“There is no reason in principle why there would be a different approach to a public page of the kind the appellants have established and a private page accessible only by the user’s Facebook ‘friends’,” says a submission filed for the media by their legal team of Neil Young QC, Perry Hersfeld SC and barrister Lyndelle Barnett.