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Op-Ed: The law finally moves on online hate – High Court holds news media responsible as publishers of Facebook comments in defamation case

This decision makes the hate factories liable. You can’t just accuse people of crimes, as most conspiracists do, and get away with it.

Fake news on the rise ahead of Mexico elections
Photo: © AFP STR
Photo: © AFP STR

It’s a decision which could change the internet forever. The High Court of Australia has ruled that news sites Sydney Morning Herald and The Australian are responsible for third party social media comments in a defamation case.

This is a pretty grim defamation case. The complainant, Dylan Voller, was a detainee in the Northern Territory. He was pictured shackled to a chair, and his case caused an enquiry into the “torture” of young detainees and unlawful forms of detention.  

The online geniuses, of course, had to comment, and they weren’t nice about it. Mr Voller wants to sue the news sites for publishing defamatory remarks about his case. The question was whether the news sites were responsible for the comments.

The High Court held that by creating the Facebook pages, the media companies “encouraged and assisted” publication of the offending remarks and could be sued. Sydney Morning Herald and The Australian aren’t happy about it, understandably, but wrongly. This ruling could get them out of a lot of future trouble.

At last, some online legal sanity

The slow movement of law online is legendary. In the past, the internet was the Wild West/ Mild Pest for ranting nuts screaming abuse at all and sundry. There was a very wrong belief that because it was online, it was free from legal comebacks. That’s never been the case.

Nothing online is exempt from any legal process, and nothing ever has been. Any legal injury online is and always has been actionable. The main issue has been pinning the liabilities on those responsible.

This decision makes the hate industry vulnerable, at last, and cuts off its life support. You can’t just accuse people of crimes, as most conspiracists do, and get away with it anymore. If publishers are held liable, they’ll be very careful to avoid big damages claims.  The internet may finally be free, or at least a lot freer, of the toxic garbage of hate speech.

What’s so important? A huge legal shift in the making

Online hate is everywhere. It’s easily arguable that many sites make a lot of money fanning the flames. The conspiracy theorists, the propagandists, and other online vermin have been polluting social media for decades.

A lot of this “commentary” is defamatory, accusing anyone of anything. Much of the commentary is paid-bot commentary, too. The trolls don’t work for free. They get paid to hit individuals and swarm specific issues.  I’ve seen many Facebook accounts years old with no posts, no account info and no friends suddenly spring to life posting hate. (I report them. At one point, it was so regular it was downright monotonous. Every American election year is so predictable.)

Mainstream media outlets are frequently targeted by troll-sponsors as a way of getting attention. The hotter the commentary, the better, for them. This is where the defamation starts, and now, where it ends.

This decision gives mainstream media a way of dodging a lot of bullets. They were never really outside the commentary process, anyway. Controversy sells, but at a hideous price for online readers.

The sicko factor is one of the things people despise most about doing anything online. Nobody likes it, and it detracts severely from the user experience. Who wants to read paid troll nutcases 24/7?  

Taking away a load-bearing atrocity for the nuts

This decision will quite rightly get a lot of attention worldwide. It’s a global problem. Publishers have the ability to manage online hate, and they usually don’t. Now they have an incentive; big money in damages if they don’t.

Global media has been a party to the rise of the nauseating “populism”, aka propaganda-based persecution of people.  Much righteous squeaking has been added to the mix to shift blame away from the media, and it just doesn’t wash with anyone.

Let’s clarify:

  • Hate speech and defamation aren’t “free speech”. It’s abuse at best.
  • Accusations have a well-defined legal status. Outside a court, they can be considered defamatory. You can’t just destroy people’s reputation and cause them injury with impunity.
  • Defamatory insulting comments aren’t “news” in any possible context.
  • Shouting down all other site users isn’t great UX, either. Any barely competent market research should show that to the most insular of publishers.

Like many other writers, I’ve spent a lot of time criticizing the law for its lethargic approach to online issues. Now, let’s give credit where it’s due – This decision will work. This can’t be the last word, but it’s a great first step to cleaning up the online pigsty.

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Written By

Editor-at-Large based in Sydney, Australia.

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