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Image: The Spinoff/Getty Images
Image: The Spinoff/Getty Images

MediaSeptember 11, 2021

Australian media can now be sued for comments left on their Facebook posts. Could it happen here?

Image: The Spinoff/Getty Images
Image: The Spinoff/Getty Images

In a shock decision, Australian courts have ruled that media organisations are legally liable for defamatory comments left under their social media posts. Hal Crawford explains what it means for media on both sides of the Tasman.

This week the High Court of Australia decided that news organisations are legally responsible for the comments other people make on their posts on Facebook. The decision sent a little shock wave around the world: not only does it harm the media’s ability to use social media to generate traffic, it has serious implications for anyone who posts anything on social media. That’s a lot of people.

The lead up

This case has been banging around the traps for years. The story begins with a 2016 expose of shocking treatment of prisoners in a Darwin youth prison. Footage shows one of the young inmates, Dylan Voller, strapped in a chair with a bag on his head. Many news stories about the case are written, and these stories are posted by news organisations to Facebook. On some of these posts, Facebook users make allegedly defamatory comments about Voller. Voller and lawyers decide to sue: the twist is that they go for the news organisations rather than the people who actually made the comments. Voller and team do not give notice so the organisations can take the comments down. They go all in, and they go for the people with the money.

Nasty, but beside the point

The thing about defamation cases is that you always get curious about what was actually said. You know, the bad stuff. As humans, we can’t help it: what words caused an underage felon to lawyer up and battle through appeals to the highest court in the land? Presumably my curiosity is contradictory to the purpose of the suit. That is often the case with defamation, and it’s not the point here. Whether or not the comments are actually defamatory is yet to be determined, a matter for another court case and perhaps several hundred thousand dollars more in legal fees.

Here the issue is whether the news organisations can be held responsible for what other people append to their social media posts.

The general view

I’ve spoken to a couple of level-headed MOPs (members of the public) about this, and they welcomed the decision. “I hate comments”, is the general take, and “anything that discourages horrible comments is good”. This is not my view. By my reading of the decision, responsibility for comments could easily extend beyond news media to business, charities, and indeed anyone posting material on social media.

I first became aware of the Voller case around 2019. I was working in the Newshub newsroom and when the first first ruling came down we were deeply concerned that the Australian precedent could spread to New Zealand. At that time, Facebook page admins could not disable comments on a particular post. You had to pick up nasty comments after they had gone up, or use a shonky workaround where you filtered out problematic words in a bid to prevent comments with those words appearing. Even with the resources of a big New Zealand newsroom, we had nowhere near enough people to moderate everything. We ended up avoiding posting stories we thought would invite potentially defamatory comments. All the time, I thought a higher court would step in and prevent a poor decision from being made law.

The actual judgment

The High Court decision runs to 71 pages. I was expecting it to be a chore to read. Instead, I was taken on a ride through a strange and frightening world. In this world, events of 150 years ago appear as if they were yesterday, innocent servants are taken to court for delivering packages, racy poems are stuck to golf club notice boards, and pretty much everyone is on the hook for everyone else’s offended honour. You’ve got to hand it to defamation law in Australia: it’s a broad and rambunctious church.

The Australian High Court has seven members, and the Voller decision was not unanimous. The justices were split five-two. I did some analysis and it turns out the dissenters were the youngest members of the court, with an average age of 50. The average age of the majority judges was 62. I don’t believe this is unrelated to the outcome.

I was also gobsmacked to discover that one of the dissenters, the youngest member of the High Court, was my friend’s little brother. I hadn’t been keeping up. I remember him being pretty annoying. Justice Edelman’s dissent was magisterial and well-argued, and found that because people can make comments entirely unrelated to the original post, it is wrong to have a blanket rule that makes the original poster the “publisher” of all comments.

Don’t be happy, be afraid

The Australian High Court doesn’t have jurisdiction in New Zealand, but its approach may be influential. In the decision itself there is reference to a New Zealand case from 2014 – dismissed by the Australians with the legal equivalent of an eye-roll – and the similar legal system means that while no precedent has been set, it may be referenced in NZ courts.

In March of this year, Facebook introduced a feature where you can turn off almost all comments on posts. While this allows news publishers (and anyone else) to avoid most legal problems, it also significantly reduces the potential reach of those posts. Comments are signals to the Facebook algorithm of worthy content, and result in the post being shown to more people.

Probably more important is the potential application of the principle of commenting responsibility beyond news, to influencers, politicians, and anyone who posts on social media with the intention of drawing attention to themselves. Certainly in Australia, whether posters are aware of the nasty comment or not, they are on the hook. To quote from the High Court majority:

“A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.”

In closing, your honour

I don’t want to exaggerate the risk here. The Australian government is in the middle of a process of reviewing defamation law that will examine social media comments and hopefully restore the balance. The issue in the Voller case is muddied by the fact that the defendants are all news publishers, but there’s nothing in the High Court judgment that limits responsibility for comments to the media. Defamation law is broad and while there are plenty of defences, merely being the target of a claim is horribly expensive in both Australia and New Zealand. After this decision, reform is needed, and fast.

Illustration: Toby Morris
Illustration: Toby Morris

MediaSeptember 10, 2021

The Spinoff turns seven today, and we couldn’t have made it here without you

Illustration: Toby Morris
Illustration: Toby Morris

Delta may have interfered with our plans to mark the big day, but making it to seven is a huge achievement, writes founder and publisher Duncan Greive. 

Today marks seven years since we hit publish on the first post on The Spinoff. Back then it was just two people, both still here, somehow, and our focus was squarely on television. I look back on those days – writing this in bed, as the delta lockdown enters its fourth week – and am charmed by the naive confidence with which we carried ourselves. We knew almost nothing – had no social media strategy, no research, no sales expertise, no clue about anything, really.

We could see as far as our lone commercial deal extended, which was a year, and had the freedom to write to entertain and inform within our chosen area. At the time, just making it to a year seemed like it would represent a bizarre and unanticipated outcome. But seeing as we had that time and freedom, we decided to just make use of it. We approached writers we loved but thought we had no shot with, like Rose Matafeo, who went on to global stardom, and Toby Manhire, who eventually became our editor. We made a series of odd videos with David Farrier (which hold up imo), killing time before he made Tickled. And we debuted our first podcast, the brainchild of Jane Yee, who now runs podcasts for us.

An action shot of The Spinoff’s first office in downtown Auckland in 2016

Looking back today, I love the audacity of it. The way we turned the low stakes into an advantage, and an audience found us despite our best efforts, embracing us as we were: having fun figuring it out as we went. That still feels like such a critical part of who we are as an organisation, and of our relationship with you, our audience. That sense of closeness, of listening to you as well as talking to you, has helped shape us in incalculable ways. Most importantly through The Spinoff Members – allowing our audience to donate to us is the single most important decision we ever made, and the only reason I am writing this today. Now it’s the single most important source of funding we have. Without it, we wouldn’t have survived last winter. Back in level four lockdown in 2021, we’re again facing budget challenges, as reliant as ever on the support of our audience.

The seven years we have been around is also, coincidentally, precisely how long NZ On Air has been running its fascinating and revealing “Where are the Audiences?” research (head here for my analysis of the latest instalment). The project charts changes in our media consumption over the entire period of The Spinoff’s life, one that has seen a drastic drop in traditional media audiences, particularly among younger people, with that behaviour replaced by a complex web of online consumption. We have tried to follow audiences to where they live, and maintain a strong presence on YouTube, Facebook, Instagram, Spotify, Twitter and even LinkedIn (!). Some might find us only on or through those platforms, and we’re fine with that.

The Spinoff Group staff in the Morningside offices earlier this year (Photo: Julie Zhu)

Still, we always wanted The Spinoff to appeal to a psychographic, not a demographic – so while our audience skews a bit younger than most mainstream media, we also love the fact that our readership among people over the age of 65 has grown hugely over the past 18 months, and they now make up a large share of our members. The Spinoff was not designed to appeal to a neat audience segment, instead being much more about an energy, a kaupapa, a broad vision for Aotearoa and the world (while acknowledging that we won’t all agree on the best path there – and that’s fine too). 

In recent years we have grown as opportunity and instinct have allowed us to. We made a bunch of podcasts, a TV show on Three, and a bunch of web series, some of which won awards. We published a book with Penguin. And we created two sister organisations in Hex Work Productions, which makes video, and Daylight Creative, a content studio that works with other organisations. 

We also grew our scope considerably, with Leonie Hayden creating The Spinoff Ātea in 2017 to honour Te Tiriti and cover te ao Māori within The Spinoff. There have been a large number of other verticals along the way, including politics, business, social issues and much broader cultural coverage. The latest project is called IRL, exploring the intersection of the internet and people’s lives, which Maddie Holden introduces here. Our team of writing and editing staff expanded from two to 20. 

Mad, Toby and Alex in the special reunion episode of Friends (Photo: Hōhua Kurene)

Today was supposed to be a huge day for us. On our seventh birthday we had planned one of our biggest changes yet – with Toby Manhire stepping down to hand the reins to Alex Casey and Madeleine Chapman, two wāhine who have been as strongly associated with The Spinoff and its rise as any individual. The pair even started doing some promotion, appearing on RNZ’s Saturday Morning for a very funny and thoughtful edition of Playing Favourites

Then delta came for our best-laid plans, as it did for those of so many others. As a result, Toby has stoically agreed to continue his fantastic period as editor for a few more weeks, leading his team into covering this very tricky period with his customary poise and vision, so as to allow our editorial transition to happen when we’re out of lockdown. The staff party we had planned has been put on hold, and the day feels disappointingly like any other.

But it’s not. I’ve heard seven years talked about as a milestone in any organisation’s existence – proof that you’re built to survive some storms, and a point at which people understand who you are and what you’re about. It certainly feels like that today – like we have overcome the long odds that greeted us when we first flicked the switch, and become a small but singular part of the media in Aotearoa.

Today, I want to thank everyone who has ever worked for or contributed to The Spinoff or its siblings. This has been a collective effort, the ideas and instincts and hard work of many people, always in motion and evolving each day. This job is hard; communicating to large audiences can be both exhilarating and exhausting, often in the same day. I’m consistently awed by the creativity and purpose of those who work here.

I also want to thank our audiences – everyone from those who bought into our commercial partnerships, which remain different to what others offer (ask us how), to those who have read and shared our work, to the deadset legends who have supported us through Members (and if you aren’t signed up and want to make our birthday, please consider doing so today). Without an audience, any form of media is doomed, so for all those who have consumed our work over the past seven years, a huge thanks from all of us here. 

This day might not have dawned the way we planned it, but it’s a special feeling for us all to have made it here all the same. Anyone reading this had a role in it, and we’re all very grateful for that.