Early in the hearing for the defamation case Voller v Nationwide News, Justice Stephen Rothman joked to barrister Tom Molomby SC: “Remind me, Mr Molomby, Facebook is something on the internet, is it?”
Molomby replied that when it came to Facebook: “I would describe myself as someone in the sandpit with the alphabet building blocks.”
Hah. It’s all fun and games until media outlets are found liable for comments written by random people on Facebook under Australia’s restrictive defamation laws.
And the stakes are high: the outcome of this case could radically change how news outlets use Facebook.
To recap: we first met Dylan Voller when he was shown wearing a spit hood and restrained to a chair in an ABC Four Corners story about mistreatment in youth detention. He became a public figure, and sometimes a media punching bag, and in 2018 filed proceedings against Fairfax Media, Nationwide News and the Australian News Channel.
A question of liability
The twist, though, was that Voller sued over Facebook comments written by readers, not copy written by journalists. And in a 2019 pre-trial skirmish, Rothman found the media companies were considered “publishers” of these comments.
An appeal judgment last week softened the blow for the media outlets, but did not exonerate them. The court agreed the outlets are publishers — finding they had “encouraged and facilitated” the comments — but also reopened the door to a defence of “innocent dissemination” which could allow media to avoid liability at trial.
The appeal court also set aside a controversial finding by Rothman about how Facebook operates, saying his conclusion that it is “possible to hide all comments on a public Facebook page” might be a misunderstanding.
One thing clear from the hearing is that there was significant confusion about what Facebook allows media companies to do. This was exacerbated by a number of things, including a lack of comparable cases and the interchangeable use of words such as “blocked” and “hidden”.
The only expert witness to testify, and on whose evidence many of Rothman’s conclusions were drawn, was Ryan Shelley, who is the managing director of social media and digital marketing agency Pepper It.
Shelley’s credentials, according to his affidavit, include 15 years of working in digital marketing and social media, and 11 with Facebook.
He made clear that you cannot disable comments altogether on a public Facebook page. He proposed a workaround under which media outlets could add 100 commonly used English words to a filter list, which would then automatically hide comments containing those words from most users.
Shelley’s expert report stated that page administrators could “employ the workaround described to effectively hide all comments by default”.
Move to strike
Barrister for the media outlets James Hmelnitsky SC tried to strike out this and other paragraphs, arguing they went beyond expert evidence about Facebook’s tools. But Rothman allowed them.
Under cross-examination, Shelley conceded that some comments could slip through the filter, such as image-only comments, one-word comments using an uncommon word, or misspelt words.
But Rothman stated in his judgment that page owners may “block all comments on the public Facebook page totally” or “hide all comments on the public Facebook page”.
Last week the appeal court said this finding should “fall away” as it “may have resulted from a misunderstanding of the evidence”.
Media companies say their lack of control over the comment section means Facebook, not them, should be liable.
Shelley did not respond to questions from Crikey.
The media defendants are considering a High Court appeal. Other issues touched on in the hearing — such as whether the media published stories on Voller knowing he would be exposed to a social media free-for-all from which they may gain commercial benefit — are likely to be further duked out when the case goes to trial.
In retrospect, it should have been clear from an exchange towards the end of the hearing that the comment issue had not sunk in. As Hmelnitsky delivered his closing argument, he mentioned the NSW Supreme Court has a public page.
“It doesn’t allow comments,” Rothman said, raising eyebrows in the courtroom. Hmelnitsky replied that it certainly does: “It can’t be turned off, your honour.”
Of course the Supreme Court doesn’t publish judgments on Facebook for commercial benefit. But regardless, it doesn’t appear to monitor comments.
Those on the post sharing the Voller appeal decision are hilariously tame. “I somewhat disagree,” wrote one person.
But if you scroll to the post sharing Saturday’s last-minute judgment authorising Sydney’s Black Lives Matter march, something very familiar emerges. “What an absolute INSULT to our brave diggers. They couldnt march but these thugs can,” was one. Another: “You weak gutted shit for brains.”
In those posts the problem — shared by media outlets desperate to avoid liability and the people they write about who are sometimes crushed by online abuse — becomes as clear as day.
Great summary, LS, sorry to hear about BFN, and good to see you here. This is a definitive story in so many ways. Forgive the long comment (even by my standards). Think many may be missing just what’s at stake here.
The holy grail every commercial media interest seems desperate to hit upon is a biz model that just doesn’t exist: one that can harvest the value-adding benefit of having reader interactivity, and all the competitive extra clicks/subs/traffic/ads it attracts, without having to pay for the ‘value-adding’ labour of some form of editorial moderation of it. It doesn’t exist, alas. Not really. Anyone who’s ever run a website with comments will know it. You want interactivity and ‘free’ reader content that isn’t filth, sludge, dreck, defamatory, abuse, etc? It can’t be free. It takes work. Editorial work. Editorial work for…a pro journo. So this current court case is a good litmus test/awkward brick wall for a media industry that finally has to decide just how much it’s willing and able to invest in value-adding information work, by information professionals, to get an information product that is still commercially viable.
Now, if a journalism site really doesn’t want to pay a pro journo to moderate its threads meaningfully…my least-worst suggestion has always been to (at least) ban anonymous comments (in the way Legacy Press demands name/contact details for their Letters Pages). IMO the price of the ticket to free speech (ie ‘speaking freely’) is publicly-visible authorial ownership of (rather than any limits on) what you say. From a pragmatic PoV it’s also the cheapest way to ameliorate the risk of hosting defamation, abuse, intimidation, etc. I say this as someone who has spent far too many man-hours of my life moderating online comments – including back in the ‘cut n paste’, pre-automation, pre-social media (pre-Buzz) era. I’m well aware that suggesting a ban on anonymous comments always elicits howls of protest and ridicule across Teh Interwebz. Fine, fine, I get it. (Actually, I personally don’t really get why people ‘de-author’ themselves…our names spoken out loud in public – ‘George Floyd’, ‘D-vid D-ngay’ – are about the only ‘information age’ firepower most of us have to cling onto.) But fine, I get it.
However it’s not just about ‘authorial dignity’ and ‘speaking freely’ now. This court case shows what I first suggested way back in about I dunno 2006…that the ‘free speech’ free-for-all will be ended not by the legalities of the Information Age, but by its economics. This current court case is really an industrial dispute over who should bear the cost of maintaining information workplace safety/quality control. These tricky questions were always going to have to be faced up to. Not least because they are absolutely fundamental to the prospects of journalism professionals like you, LS. We’ve all enjoyed our info-cake since 1996, even as we’ve gobbled it up. The right to harvest extra clicks through interactivity under our masthead, and the right to offload to elsewhere any extra cost of harvesting those clicks. The right to fling abuse from behind an avatar…while using it to shelter from abuse flung at ourselves. The right to make money from our and others’ information labour/content…and the right not to pay others for theirs. And so on.
But it’s all finally coming to a head, in these corporate face-offs as old model viability finally crumbles. The information money-pot is emptying fast and every big beast is fighting like hell over it. News Corps wants Google and FB to advertise its content and direct global traffic its way, while also paying News for using its content to…perform that value-adding service for…News. Google and FB, meanwhile, want to stock their own content-less shelves with News’s very expensive stuff and pay nothing for it, no matter how many shoppers come in because of that content, paying Google and FB for the privilege by buying the Google/FB ads in the doorway…ads which Google and FB have…erm…also basically stolen from News. (‘A 3-Way Chutzpah Circle Jerk’, I think is the term.) In this case, FB wants ad-network-revenue from its Nationwide News franchise-site readership piggy-backing, while NN wants the clicks that come the other way…but neither want to bear the cost of any defamation the partnership might create (or pay a watchful pro journo, to make sure it doesn’t). Meanwhile free-to-air TV has been outright stealing Teh Interwebz social meeja tribe’s content as commercial bulletin-filler for years – truck crashes, live shootings, cute cats kissing pythons – even as they sneer at us as crazed amateurs, not worth a dime.
We all know this cannibilizing game of information musical chairs can’t go on forever. ‘Defamation’ this case may nominally be about, but all these instances are part of the same info-revolution underway, inevitable commercial disputes between dying information business models that were always going to need resolving, all on the same theme: how to recalibrate the monetization of information, in a world increasingly awash with free stuff.
Which brings me back to authorial ownership and anonymity. My view is that if you’re in the business of making a buck from information – whether an individual information worker, or a company – then you need to eschew the latter, in all forms. You need to insist on ‘visible authorship’ for the information you trade in, not just as a powerful way of manifesting and defending-by-doing true ‘free speech’ in an era of whining claim and counter-claim to it (free speech as the verb it was always intended to be: ‘speaking freely’…including unencumbered by a mask). But also, clear authorial ownership of information, as a kind of new information business model ‘value-added line unit’. An operational marker of being in the business of quality, value-added information; in the info-marketplace selling not only information but an attached, value-adding imprimatur, too. This benchmark of ‘information fidelity’ is crucial to making ‘copyright’ viable in the legacy world, so perhaps it’s going to have to be extended properly online (comments thread input, too) to make copyright equally viable online. That way, the cost-benefit value-adding of professional journalism – such as in moderating comments – can be priced properly into the whole supply chain, sustainably.
And yes, no doubt Teh Interwebz would lose an awful lot of its interactivity with no anonymity at all, I get that…but anonymous information-producers rarely stump up with their dosh for others’ info, anyway. And I’ve always gut-thought that having gazillions of author-less clicks and comments and likes and followers kind of… cheapens the mother information to which it’s attached, rather than value-adds to it. As the market becomes glutted with author-less information – most of it rubbish, but plenty of it pretty good, too – I think authorial credibility (Byline, Masthead, site imprimatur) holds the key to journalism’s viability as a scale, livable occupation.
I’m very long-winded. Thanks again for following this case, LS. I think it’s hugely important for the future of journalism. Crunch time, re: how acutely media companies grasp the difference between ‘content’ and ‘value-added information’, and how much they’re willing to invest in it. For their own survival sake, ultimately.