Outdated defamation laws and online media don’t play well (and often need to be put in time out).

Social media can only be blamed for so much, so when does the third party (you and I) begin to take the blame for posts, comments and interactions online?

Today’s developed countries are living in the virtual, we react through like buttons, and share our thoughts through comments. It is because of this digital wall that is built between us all that we begin to lose touch, and thus share opinions that we generally wouldn’t say in person. The ease of ranting on social media has created hundreds of sticky situations between friends, families, neighbors, and even super stars. But the big problem is many journalists and media outlets rely heavily on the engagements (comments and likes) on their online media to gain reach and traction. (10) The defamation laws are restricting journalists and media outlets from gaining this traction, and are creating a . My example of focus for this blog post is a legal case between Dylan Voller and the three media outlets Fairfax Media, Nationwide News and Sky News as it demonstrates how exactly the defamation laws are (10) “stacked against journalists”.

Dylan Voller is an infamous household name that has been thrown around in the Australian media for over a decade now, his actions as a child and teenager consequently had him in and out of detention centers for most of his young life. The now 24 year old reflects back onto his childhood, (1) “Now I’m older, I realise how mentally damaging it was for me and how much it impacted me, going in and out and in and out in my cycle of life.” And the stats show it, aboriginal male juveniles have an (2) 80% chance of re offending. But many don’t understand this, and still can’t comprehend why on earth people would want to re-offend other than it just being apart of there nature. Which leads to the spread of opinions over social media, and for today’s point of focus, in-particular commenting on news stories that Fairfax media, Nationwide News and Sky News had published on Facebook. This is where Australia’s outdated laws come into play.

Voller took the three media companies to court, questioning (4) “whether operators of Facebook pages published material posted by third parties.” In layman’s terms this means that Voller was filing for defamation because the outlets accusingly (Fairfax, Nationwide and Sky) prompted people (third parties) to comment poorly about Dylan which in turn led to his ruined reputation. But as stated at the start of my post, pages need engagements like comments and likes to build a platform. This can be seen below in the picture provided.

The real question now being, how can journalists grow there platform if the Australian defamation laws are restricting the engagements on their post?

But what is defamation?

The legal definition written in (5) The Law Project refers to it as, “…the area of law that is concerned with a person’s damaged reputation.” To break this down for you, when someone (you or I) post/publish a piece of writing on a platform (and in this case it is Facebook), we automatically become the author, thus liable for the outcome of that publication (post). Now if this post is harmful to another persons reputation, they then have the ability to file for defamation. And this is exactly what Dylan Voller did, taking the three outlets to court over the comments of a third party.

But these laws are outdated (as are most of our laws, so don’t get me started), they were put in place on a national scale in 2006, back when social media was barely on the scene. *To create a timeline for you, 2007 was when the first iPhone was released.* So the law was made pre-Steve Jobs, and well, we all know how much the world has changed post-Steve Jobs. Which meant that back in 2006 many outlets had limited online platforms, because newspapers and morning television was still the in-thing. Now though, according to the BBC, (6) 11 million plus Australians utilize Facebook as their main news source. So these laws that have been firmly in place, now need to shift and modernize, otherwise cases like Voller’s become a common theme in the court, which again we have seen time and time again.

I do recognize that the legal system is very intricate and complicated, almost a pyramid, and if the ground works are tampered with, the rest of it starts to become very unstable. But in reference to the image below, freedom of speech also makes up the bottom stable layer of law. So I question, how can people speak freely if laws are hidden under the use of every word they type?

Principles - Rule of Law Education Centre

These laws are turning the court system into a school yard playground, your neighbor and you are just paying a lot of money to sit in time out.

Is change coming?

The simple answer, yes! I have speculations that Voller’s case accelerated the move towards the new laws because it made publishers realize that they cannot continue to get the blame for third party comments. The court readings suggest that (3) ” Where the author affixes a defamatory notice to the property, it might be said that the owner participates in the process of communication by providing the means by which the communication occurs. ” And this argument is one of many that circulate back down to the ‘owner providing a space for communication’, which I would disagree. The publications were just writing/reporting on the story of Voller going back to the detention center. It wasn’t their main goal to fuel 3rd party comments, obviously this was going to happen because pages and sites need engagements to earn money. So why should they be fined for the wrong doings of a 3rd party, when interacting with posts is the aim of online media?

It was only last year (2020) that the reform of (8) NSW (New South Wales) defamation laws took place. But the changes aren’t revolutionary, as (7) “a big chunk, or even most of defamation law, is made by judges.” Michael Douglas, author of The Conversation’s news story ‘Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet‘, explains the laws of defamation and how traditional media (newspapers, magazines and T.V stations) have been, with these new laws, given the tools to defend defamatory claims. But journalists and online media companies still have to watch out. Plus the laws have only shifted in a few states, including New South Wales, others still have to change. Which means the reform isn’t federal.

Having cash, and lots of it is still very necessary for these cases.

The newly refined laws still don’t stop small backyard disputes from going to court, and this is not only suffocating the legal system but is breaking the bank of many Australians. (9) If the courts could agree to creating laws which would settle defamation cases quickly our systems would run a lot smoother.

“Say, for example, your ex falsely called you a domestic abuser to your friends and family on Facebook: you shouldn’t need to be cashed up to protect your reputation.”

Michael Douglas

And that’s what it comes down too. Our modern day media has created an environment that allows for us to easily write information about people that can ruin their lives. It doesn’t take much for a rumour to spread, as screenshots can be taken, posts can be shared, and comments can circulate.

Linking it back to Voller

Voller’s legal case is a large one, involving many parties and has been fought over a long period of time. It is a good example of why you should be careful of what you post on the internet. Are you willing to take the blame for a third parties comment?

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1. Dylan Voller joins chorus calling to change age of criminal culpability (2019). Available at: https://www.abc.net.au/news/2019-06-26/dylan-voller-joins-chorus-change-criminal-age-of-culpability/11250296 (Accessed: 10 April 2021).

2. Jens Korff, C. (2021) Aboriginal prison ratesCreative Spirits. Available at: https://www.creativespirits.info/aboriginalculture/law/aboriginal-prison-rates#:~:text=The%20re%2Dconviction%20rate%20within,of%20adult%20Aboriginal%20males%20reoffend. (Accessed: 10 April 2021).

3. (2021) Cdn.hcourt.gov.au. Available at: https://cdn.hcourt.gov.au/assets/cases/08-Sydney/s236-2020/FairfaxMedia_NationwideNews_AustralianNews-Voller_Reply.pdf (Accessed: 10 April 2021).

4. Supreme Court of New South Wales – Court of Appeal. 2020. Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 (1 June 2020). [online] Available at: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2020/102.html&gt; [Accessed 11 April 2021].

5. Defamation Law in Australia — The Law Project (2021). Available at: https://www.thelawproject.com.au/defamation-law-in-australia (Accessed: 12 April 2021).

6. Facebook in Australia: What happened after news was blocked? (2021). Available at: https://www.bbc.com/news/56127158#:~:text=%22Some%2011%20million%2Dplus%20Australians,news%20website%20for%20their%20information.%22 (Accessed: 14 April 2021).

7. Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet (2020). Available at: https://theconversation.com/australias-outdated-defamation-laws-are-changing-but-theres-no-revolution-yet-143532 (Accessed: 14 April 2021).

8. New NSW defamation laws: A shift in balance between free speech and the protection of individual rights? (2021). Available at: https://www.holdingredlich.com/new-nsw-defamation-laws-a-shift-in-balance-between-free-speech-and-the-protection-of-individual-rights (Accessed: 13 April 2021).

9. The ‘ugly’ reality of your day in court — this is how much it actually costs (2018). Available at: https://www.abc.net.au/news/2018-12-20/the-true-cost-of-a-day-in-court/10610408#:~:text=In%20NSW%2C%20solicitors%20typically%20charge,can%20be%20upwards%20of%20%243%2C000.&text=Those%20with%20special%20expertise%2C%20for,like%20defamation%2C%20can%20charge%20%2425%2C000. (Accessed: 13 April 2021).

10. School, M. et al. (2021) Defamation and social media: when old laws meet modern techMelbourne Law School. Available at: https://law.unimelb.edu.au/alumni/mls-news/issue-22-november-2019/defamation-and-social-media-when-old-laws-meet-modern-tech (Accessed: 11 April 2021).

11. How the Facebook Algorithm Works in 2021 and How to Work With It (2021). Available at: https://blog.hootsuite.com/facebook-algorithm/ (Accessed: 10 April 2021).

12. Steve Jobs | Biography, Education, Apple, & Facts (2021). Available at: https://www.britannica.com/biography/Steve-Jobs (Accessed: 10 April 2021).

Defamation in the digital age – beware of social media comments (2021). Available at: https://www.allens.com.au/insights-news/insights/2020/06/defamation-in-the-digital-age-beware-of-social-media-comments/ (Accessed: 31 March 2021)

Media lose Facebook defamation case, mull appeal (2020). Available at: https://www.afr.com/companies/media-and-marketing/media-lose-facebook-defamation-case-mull-appeal-20200601-p54yar (Accessed: 31 March 2021).

(2021) Cdn.hcourt.gov.au. Available at: https://cdn.hcourt.gov.au/assets/cases/08-Sydney/s236-2020/FairfaxMedia_NationwideNews_AustralianNews-Voller_App.pdf (Accessed: 1 April 2021).

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