Commentary

Can Publishers Be Liable For Others' Facebook Posts?

Publishers that post articles on Facebook have a new worry. An Australian court ruled this week they are liable for defamatory comments that other people make about those posts.

While it's unlikely the ruling will affect most U.S. publishers, media companies with operations in Australia need to be more mindful of the court's ill-considered decision.

Because media companies urge Facebook users to make comments seen by others, they should be considered responsible for the contents of those comments, the highest court in the Australian state of New South Wales ruled on Monday.

The judgment was in a case brought by Dylan Voller, an Australian who became the subject of media attention after being detained in a juvenile detention center. News outlets posted stories about Voller on Facebook, drawing comments from other users of the social network that falsely accused him of crimes, according to his lawsuit.
News Corp's Australian unit, whose publications include the Sydney Morning Herald, was a defendant in the original suit.
Facebook does provide the ability to moderate comments, giving publishers some control over what appears near their stories. That feature strengthens the argument that publishers are responsible for reader commentary.
In the U.S., Facebook has broad protections under Section 230 of the Communications Decency Act that effectively immunizes the company from what people say on its platform. President Trump signed an executive order to weaken those protections amid a tiff with Twitter, which had marked one of hits tweets with a fact-checking notice. The order is unlikely to withstand legal challenges.
As Facebook and Twitter exercise more editorial control over user posts, they run the risk of weakening their Section 230 protections -- possibly setting off a surge in defamation lawsuits. It's unclear if Congress will ever revise the law, especially since Silicon Valley has the best lawmakers and lobbyists money can buy.
Australia has been more activist about targeting U.S. digital media companies, like Facebook and Google, possibly out of resentment against Silicon Valley giants that dominate the global media landscape. After a Facebook user posted a live shooting spree at a New Zealand mosque last year, Australia passed a law to fine social media companies that don't remove violent posts quickly.
If Australia's ruling on Facebook comments withstands legal challenges, publishers in the country may request that Facebook permanently disable user comments. That would be a shame, since social-media commentary can help publishers gain insights into their audiences, much as letters to the editor have done for years.

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