#AQuestionOfLaw: Can a media house be held liable for defamatory comments by others under their social media posts?

The Australian High Court has set what seems a remarkable precedent that could soon creep into progressive common law jurisdictions worldwide. In a landmark decision this week, the Court ruled that the country’s media houses could face liability for defamatory comments on their social media posts by third parties, reports RT. In other words, a defamatory comment by a social media user underneath a picture and/or a video and/or a story and/or a question posted by an Australian media house can trigger a claim against the relevant media house.

The facts

In 2016, Dylan Voller, a teen, was captured on video suffering cruel treatment in a Northern Territory prison in Australia. Various news organisations in Australia posted the video online, drawing a storm of unkind comments from viewers around the globe.

Calling the comments defamatory, Voller sued the Australian, Sydney Morning Herald, and News Corp’s Sky News Australia. Voller argued that the Court should hold the defendant media houses liable for the third-party comments in his action.

In response, the defendant media houses pushed back, arguing that it would be wrong in law to hold them liable for their readers’ comments.

At first instance, the judge decided the issue in favour of the claimant. The defendant media houses appealed.

The Court’s Decision

By a majority decision announced Wednesday, the Court held that the question of liability should turn on whether a defendant “publisher” participated in the communication of the defamatory comments by “facilitating and encouraging” the relevant communication.

Applying the test above, the Court held that through “the creation of a public Facebook page and the posting of content on that page, [the defendant media houses effectively] facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users.” The Court then concluded that the defendant media houses were, thus, “publishers of the third-party comments.”

The Minority on the panel took a contrary view. In a dissenting opinion, Justice Steward took the view that posts by media houses on social media trigger “an electronic conversation” that could attract “thousands of comments from around the world.” In his view, media houses would have “no actual means of controlling the contents of such comment”.

Following the decision, a report by RT quoted a Nine spokesperson as slamming the judgement as disappointing and would have ‘ramifications for what we can post on social media in the future.”

My Comments

The likely question on the minds of many here in Ghana would naturally be: why should a decision in Australia trouble media houses or institutions here? The truth is that the ratio in Voller’s case is likely to have a rippling effect in the common law world, including Ghana, although the outcome does not, in law, bind these jurisdictions. The reason is that justices in common law countries often fall on judicial decisions from analogous jurisdictions to guide how they answer similar but previously unanswered or undecided local questions of law that come before them.

In other words, an aggrieved person in Ghana can draw inspiration from the principle established in the Voller case to sue any media house whose social media post brings him under a barrage of defamatory comments from viewers or readers, as is often the case in Ghana. Thus, a Ghanaian judge, faced with such an action, is likely to be invited to adopt the approach in the Voller case, especially IF our courts have not previously decided such a question of law locally.

There is no doubt that the decision imposes an onerous burden on media houses to take steps to ensure that social media pages do not serve as fertile grounds for the circulation of defamatory comments about other persons. Indeed, while the outcome in Voller is likely to be seen, by some, as judicial strangulation of free expression across social media platforms, it is submitted that the decision as reported by RT is sound. For far too long, media houses have allowed all manner of characters to post unsubstantiated or defamatory comments underneath their posts without taking any steps to delete them. The Voller case seems a timely judicial wake-up call to media houses to act responsibly and end the endemic insanity across their social media platforms.

The next question then is, how should media houses respond?

Firstly, cautious media houses should learn from the decision in the Voller case and disable comment sections on posts they put out on social media. This will ensure that errant social media users do not use their pages as conveyor belts to publish defamatory comments about persons at the centre of their posts. Some media houses have already taken the lesson seriously. According to RT, “When ABC News posted an article on the court’s decision, it removed the ability for users to comment on the post, indicating that the ruling may already be having a restrictive impact.” Media houses in Ghana and elsewhere may have to follow the ABC example.

In the alternative, media houses must leave the comment sections active but must ensure that full-time employees read through social media comments that appear underneath their posts carefully and delete potentially defamatory ones. This will, most likely, be an arduous task for many media houses because of the sheer volume of comments their posts generate.

Where media houses doubt whether specific comments are potentially defamatory, such comments should go to in-house or external lawyers for their opinion. The problem, however, is that by the time the lawyer probably reverts with his opinion, the damage may have already been done, in which case the relevant media house may still face Court action from the individual targeted by the potentially defamatory comment.

They can also decide not to do any of the above, in which case when an aggrieved person sues them based on the principle in the Voller case, they must be ready with superior and compelling arguments as to why they should not be liable or why a Ghanaian Court should not draw inspiration from the majority in Voller to impose liability.

Of course, where a media house putting up a post disables the comment section on its page, some viewers would want to be clever by sharing the posts on their pages with defamatory captions. In such a case, the defamatory caption will be a matter that the sharer will have to answer for in Court, not the media house who, without more, put up a harmless post.

As a parting comment, while the principle in Voller primarily concerns media houses, it seems that even individuals who post pictures and or videos and or stories and or questions on their social media pages may, in appropriate cases, face what I will call the ‘Voller burden.’ In other words, they must ensure that where their posts draw potentially defamatory comments on their pages, they take steps to delete the offending comments or run the risk of facing Court action from those aggrieved.

By Richard Dela Sky (rD.s)