Australia's High Court has ruled that companies running Facebook pages can be held liable for user comments on them, a ruling with severe consequences for any business with a presence on the Mark Zuckerberg-owned platform.

In a case brought against a handful of news media publishers Down Under, Dylan Voller convinced judges that the publishers ought to be held liable for comments posted by the general public on their Facebook posts.

The ruling knocks out a major plank of Australia's legal protections for companies hosting third-party content created by others – and could have implications for the rest of the English-derived common law system.

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The Chief Justice of Australia, Susan Kiefel, with whom Mr Justice Keane and Mrs Justice Gleeson agreed, said in her [2]judgment :

In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.

Voller's case began after the Australian Broadcasting Corporation published pictures of him being hooded and shackled to a chair by police workers, highlighting the brutal treatment meted out to juvenile criminal suspects. The ABC report was followed up by the Sydney Morning Herald , The Australian newspaper and Sky News Australia. All also posted their stories on Facebook.

Following unpleasant comments from the great unwashed being posted under the stories on Facebook, Voller sued, claiming the news organisations were, legally speaking, the publishers of the comments and saying they were legally liable for them. Local state courts applied long-established legal rules saying publishers weren't responsible for third-party comments hosted on their services – but the federal High Court reversed that principle earlier this week.

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The judges added, referring to two precedent-setting cases: "Adopted in Australia in the decision of this Court in Webb v Bloch, and reconfirmed by the decision of this Court in Trkulja v Google LLC, has been the long-standing rule of the common law that every intentional participant in a process directed to making matter available for comprehension by a third party is a 'publisher' of the matter upon the matter becoming available to be comprehended by the third party."

In England and Wales, [7]section 5 of the Defamation Act 2013 protects publishers from liability for third-party user comments provided they give an aggrieved person enough information to sue the poster – or simply delete the offending comment. Australia has no such law, and the Australian High Court decision could be cited in other common law jurisdictions such as England, Canada, or even the US, as authority for the idea that operators of Facebook pages are liable for what their users do.

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While that won't have a big effect in the UK thanks to primary legislation making the position clear, other jurisdictions looking for a stick to beat social media platforms with might be tempted to go down the Australian route.

If news organisations and other businesses take the path of least resistance and stop posting controversial stories on Facebook, that's less content for Facebook users to consume. Less content could equate to fewer reasons to go on Facebook, and [9]things that reduce users' time spent inside the Zuckerborgian paradise are kryptonite for The Social Network™. ®

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[1] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YTkyocwLkH@sjgTQapqDKQAAARc&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0

[2] https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/27.html

[3] https://www.theregister.com/2021/09/08/uk_anti_encryption_facebook_e2ee_push_begins/

[4] https://www.theregister.com/2021/09/07/whatsapp_privacy_propublica/

[5] https://www.theregister.com/2021/09/06/in_brief_ai/

[6] https://www.theregister.com/2021/09/03/facebook_cachelib_nvm_not_dram/

[7] https://www.legislation.gov.uk/ukpga/2013/26/section/5/enacted

[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YTkyocwLkH@sjgTQapqDKQAAARc&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0

[9] https://www.theinformation.com/articles/facebook-secret-research-warned-of-tipping-point-threat-to-core-app

[10] https://whitepapers.theregister.com/