The Canowindra What’s On Page is usually a sleepy sort of place, but when news broke of controversial plans to build a service station on the historic main street, the comments turned nasty.
- A Facebook defamation High Court ruling exposes pages to new legal risk
- In response, MPs, councils and government agencies are disabling Facebook comments
- There are fears the ruling will have a “chilling effect” on community-run Facebook pages
More than a year later, Chris Berkeley, the Facebook page’s administrator, recalls the “barney” with a note of alarm.
“That was hectic to manage. It’s highly personal.
Things simmered down, and then last month Chris read an alarming piece of news.
The High Court ruled that a person running a Facebook page could be liable for defamatory comments made by others on the page, even prior to them being aware the comments existed.
Chris double-checked the comments on the Facebook page to ensure nothing defamatory had sneaked through.
And then he wondered if the page was worth the risk.
If the page closed, however, the town would lose an important community space; somewhere to ask questions about new COVID rules, for instance, identify a backyard snake, or report a lost kelpie.
These are small, everyday things, but important. Almost every town has its own community Facebook page.
These pages can be pleasant and rewarding, but they can also be places of intense vitriol; forums where the usual community tensions and frustration quickly translate into name-calling and personal abuse.
The question now is: will these pages survive the High Court decision?
Defamation experts expect the court ruling will have a chilling effect on speech and engagement online.
In the past week, at least a handful of MPs, two councils and a government agency have disabled Facebook comments, due to the defamation risk.
CNN, meanwhile, has taken the unprecedented step of blocking Australians from accessing its Facebook page.
So how chilly is this “chilling effect” going to get?
Administrators regularly threatened with defamation action
Immediately after the High Court decision in early September, media attention largely focused on how the development would affect news organisations running large Facebook pages.
These organisations have the money to pay damages, and their pages are often peppered with inflammatory comments.
But at the same time, and mostly out of sight, a ripple of concern was spreading through the many volunteer-run Facebook pages in Australia.
In Brisbane, Sarah MacKenzie heard the news. As the administrator of the neighbourhood Facebook group, “4069 Community and Surrounds” (20,000 members), she regularly deletes posts with dashcam photos of “bad drivers” or CCTV of alleged robbers.
“Once when someone posted a photo of a dog that had attacked another dog … [the dog’s owner said] if you don’t remove it, I’ll sue you.”
A 2018 study found Australians have an appetite for suing each other over defamatory comments posted online.
It found about half of defamation actions between 2013 and 2017 stemmed from comments posted digitally, and most did not involve a media company or a public figure.
In other words, they’re the kind of cases you would expect to arise from arguments that take place on a community Facebook group.
For Sarah, disabling comments is not an option; without comments, you might as well not have the page.
But for several MPs and councils, the engagement isn’t worth the legal risk.
Over the past week, at least eight MPs have disabled comments, including the Tasmanian Premier and the ACT Chief Minister.
One of the MPs is Sydney MP Steve Kamper.
“We’ve been getting a lot of commentary from very emotional people,” he says.
“We don’t have the resources to be sitting on Facebook … trying to talk to people who don’t want to hear the other side of an argument.
The offices of both NSW and Victorian premiers are reportedly considering taking the same step.
Risks versus rewards of running a page
A few politicians disabling comments may not be cause for too much alarm, but it’s early days. Greater changes may be on the way, according to Stan Karanasios, an expert in digital technology and society at the University of Queensland.
“The recent decision challenges the notion of using Facebook as a community engagement space,” Dr Karanasios says.
As he points out, Facebook is where news organisations and others turned after disabling comments on their own websites several years ago, due to problems moderating toxic speech.
Facebook became the “safer” place to drive community engagement — until now.
This shift coincided with the platform pushing users towards joining groups, as part of its focus on “meaningful communities“.
Then the pandemic happened, and seven months in, Facebook reported online groups had seen a significant rise in engagement.
Almost half of people surveyed said the most important group they were part of now operated primarily online.
“I think the people that run these groups may start to ask themselves some questions around the risk-versus-reward balance.”
Jason Bosland, director of the Centre for Media and Communications Law at Melbourne University, is also worried by the effect of the High Court decision on community groups and “civic engagement”.
“The public expects to be able to comment and contribute to civic engagement, and to shut that down is really problematic,” he says.
“These groups are set up to enable people to communicate with each other
“Whether that’s small groups of something like a newspaper’s Facebook page, it really goes against the functioning of social media.”
“I think this ruling can’t stand long-term.”
Working out liability is ‘uncharted territory’
So what is the liability of administrators for third-party comments?
The short answer is we don’t know yet. The High Court indicated anyone who invites or encourages third-party comments on any social media platform would be seen as the publisher of those comments.
That case focuses on media outlets, but the ruling may extend to administrators of community groups, Dr Bosland says.
In fact, the ruling extends not only to administrators of community groups, but to the ordinary members in those groups too.
The person who posts the content that then gets defamatory comments could be liable.
The key question that courts will be asking, says David Rolph, a defamation law expert at the University of Sydney, is “whether you’ve been said to have encouraged or invited third-party comments”.
He expects courts will distinguish between posters and groups that are very active, and those that are not.
“If you’re the administrator of a neighbourhood groups that’s very active, you might be publishers of third-party comments,” he says.
So what about volunteer administrators like Chris Berkeley, who say they aren’t making a “brass razoo” out of their work?
The courts may consider profit motive when weighing up if an administrator is a publisher, but it’s not a decisive test. Even unpaid administrators can be liable, Dr Bosland says.
“Whether you’re making money doesn’t really matter,” he says.
And what if you delete the defamatory comments as soon as you’re asked to?
The High Court ruled that a person running a page can be a publisher of third-party comments even before they’re aware of their existence.
But this is complicated by recent defamation law reform.
Since July 1 in NSW, Victoria and South Australia, a person who claims they’ve been defamed has to prove they suffered serious harm.
Exactly what constitutes serious harm isn’t yet clear in Australia.
But he adds this is just speculation: “We’re in completely uncharted territory.
“In the short term, it will probably have a chilling effect.”
Malicious words ‘devastating’ in a small town
The possibility that he might not be liable is no comfort to Chris Berkeley.
“I don’t want to go through rigmarole of finding out,” he says.
After all, this uncertainty is why MPs are taking the precautionary step of disabling comments on their own Facebook pages.
Malicious gossip in a small community can carry a lot of weight, Chris says.
He images a scenario where a “dog wanders off and kills a few chickens” and then someone complains on the Facebook page that the “owner doesn’t know how to look after their dog”.
“That’s devastating for someone in small town like Canowindra,” he says.
“There are, in many country towns, people who have quite a lot of money, and if people are upset enough, they’ll take somebody on.”
‘I’m not going to turn off comments’
There are a couple of scenarios for what may happen next.
The first is slow and costly: the administrators of community Facebook pages will be sued for defamatory third-party comments, and the courts will then establish whether or not they are liable.
The second option is defamation law reform.
“I think there needs to be legislative intervention to say you won’t be a publisher of material unless you have knowledge of it,” Dr Bosland says.
A law reform process is already underway to consider changes to Australian laws to address the liability of digital platforms and their users for defamatory content “published” on those platforms.
But it will be years before these reforms are enacted.
In the meantime, Dr Bosland says, community groups are in a tricky situation.
Unlike media outlets or MPs, many may not even be aware of their new legal risk.
And once they are, what are their options?
“Do you block comments? Do you disable comments?” he says.
Chris Berkeley also plans to “keep on keeping on”.
A few days later he texts an update: “We have been deleting more posts than ever before out of caution.”