Australia’s imperfect ruling on online comments will force the question of Facebook’s real value

Jordan Guiao / Sep 9, 2021

Social media comments on news articles on the most popular social platforms, like Facebook and Youtube, are often a quagmire, full of the most misinformed, vile and sometimes downright idiotic views. These swamps have been allowed to fester due to the hands-off approach to content moderation by online platforms, and a media economy that prizes engagement. Now, a court ruling will force media companies to rethink their presence on sites like Facebook.

This week, Australia’s High Court has found that some of Australia’s biggest media companies could be held liable for potentially defamatory comments posted on articles they share to their Facebook pages. The High Court rejected an appeal by media companies including NewsCorp and Fairfax Media in a defamation case that alleged the companies are liable for comments about Dylan Voller, an Australian man whose mistreatment at a youth detention center when he was a teen attracted significant commentary online and sparked a royal commission.

The ruling has some concerning elements. First, it argues that a “publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it”. In other words, publishers may be liable for defamation even if they are unaware of the offending comment on their page. And secondly, the broader implication is that any page owner- whether a businesses or even an individual- could also be held liable as publishers, since page owners “became a publisher of each comment posted on its Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user”.

That the ruling ultimately placed the responsibility on publishers seems misguided to many, especially those concerned that it may chill speech or spark copycat laws or rulings in other countries looking for ways to clamp down on online comments. Yet its broader implications may have a longer-term silver lining. It could force media publishers, or really any brand with a Facebook presence, to question why they are using Facebook in the first place.

For years Facebook’s main benefit to businesses and organizations was assumed to be its ability to enable easy and efficient reach and widespread audience engagement. Organic reach has been in decline for some time, and is now negligible, meaning the only way for wide traction is to include boosted posts and paid advertising. Now with this ruling, there will be more pressure to manage “engagement” on the platform given page owners can now be potentially liable for comments, introducing a new cost for publishers and page owners.

So if Facebook’s reach is questionable, and you can’t facilitate engagement without the risk of litigation and increased operational costs, then what’s the point of being on Facebook?

There are a few more sinister implications this ruling could facilitate – such as censorship and prosecution of dissenters, attacks on the media and any valuable (but controversial) investigative journalism, and perhaps even bad actors intentionally gaming the comments section so they can sue publishers, and it would be truly unfortunate if any of these things came to pass.

Right now, many observers are critical of the Australian decision. But this is the second time this year Australia has made global headlines on its attempts to wrangle the complex relationship between online platforms and the media. In the Spring, Australia’s News Media Bargaining Code forced Google and Facebook to make commercial deals with publishers for use of their news content. The Code was controversial, with the main criticism that it further entrenched power only for the largest media companies. That concern has since been dismissed, after a number of small publications, including Country Press Australia and its 180 strong membership of independent regional and local papers generated commercial agreements. So, we’ll have to wait and see how this High Court ruling affects things in the long run.

But the trajectory of the news media’s complicated relationship with Facebook seems clear: it has gone from courtship during the early years, when Facebook’s feeds needed more content; to a brief happy marriage of mutual benefit due to audience growth and reach; to a messy (almost) divorce during the implementation of the News Media Bargaining Code; to now, something like begrudging concessions and settlements in what ultimately seems like an unhealthy relationship.

But amidst this convoluted landscape, there are some key questions worth reflecting on: Did we really think that we could continue to let the comments section fester without someone getting hurt from it? Why have we let engagement-at-all-costs become a key metric for success?

And perhaps the most important question of all – is being on Facebook really worth it?

Read the High Court's decision:


Jordan Guiao
Jordan Guiao is Director of Responsible Technology at Per Capita’s Centre of the Public Square and author of Disconnect: Why we get pushed to extremes online and how to stop it.