Free Speech, comments and the recent High Court decision

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thermalben started the topic in Friday, 10 Sep 2021 at 6:28am

Michael West has produced a great explainer of the recent High Court decision regarding free speech on Social Media platforms. 

Michael and his team have done some incredible investigative journalism over the years, check out his site and please subscribe if you like his work. 

https://www.michaelwest.com.au/

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thermalben Friday, 10 Sep 2021 at 6:29am

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thermalben Sunday, 12 Sep 2021 at 9:51am

Some more analysis from Brett Walker at the ANU:

"Any organisation which administers a social media account could also be liable for defamation on the same basis — for example, businesses, sporting clubs and community groups," he told the ABC.

"The decision gives potential plaintiffs such as Mr Voller the choice of tracking down the 'anonymous' person who made a specific defamatory comment and taking action against them, or going straight after the publisher — ie the owner of the Facebook account."

For people in NSW, South Australia, Victoria, Queensland and the ACT, anyone threatened with a defamation lawsuit will at least have a chance to resolve the issue before it heads to court.

Recent changes to defamation laws in those jurisdictions require a plaintiff to give at least two weeks' notice of their intention to take action.

"This provides publishers with an opportunity to remove the offending material quickly to limit the potential harm," Mr Walker said.

"Those changes also include a 'serious harm' threshold to provide greater protection for comments that, while offensive, may not cause serious harm to a person's reputation."

https://www.abc.net.au/news/2021-09-12/facebook-defamation-high-court-ru...

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Fliplid Sunday, 12 Sep 2021 at 10:26am

Dictatorships have the ability to shut down dissent and this ruling seems to be the path for it to be done in Australia.

All the muppets are rabbiting on about the so called draconian vaccine and lock down rules. If you want a “wake up Australia” moment this is it.

Like MW says, it’s now up to parliament so interesting to see which way it goes.

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velocityjohnno Tuesday, 14 Sep 2021 at 4:00pm

Thank you Ben & Stu & Craig for hosting these forums, best since Weatherzone. Any idea on what your response might be? Does the ruling go so far as private chats where members are invited to be part of a group? Somehow, just clicking an 'upvote' won't be the same.

Overall the interaction has been a great net-positive, arranged around surfing.

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frog Tuesday, 14 Sep 2021 at 5:15pm

Sounds a terrible outcome. Even a threat of being sued can ruin lives.

Online commentary often goes way beyond feral in so many forums and can cause a lot of harm. No idea how to fix that but endless court cases is not the way.

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Vic Local Tuesday, 14 Sep 2021 at 5:32pm

frog: I'm tipping this will become like the s18 of the Racial Discrimination Act and it will be reserved for the most egregious of cases. There will be probably be plenty of mediation options available prior to defamation proceedings. My gut feel is for a decent payout, commenters would have to get seriously out of hand, forums would have to be left open and unmoderated, articles would have to remain online, and no remorse is shown.
In short, this type of defamation action will probably be quite rare, and publications would need to behave like Andrew Bolt to get whacked. ie arrogant, happy to host defamatory comments on their sites, and wilfully provocative.

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Blowin Tuesday, 14 Sep 2021 at 5:28pm
frog wrote:

Sounds a terrible outcome. Even a threat of being sued can ruin lives.

Online commentary often goes way beyond feral in so many forums and can cause a lot of harm. No idea how to fix that but endless court cases is not the way.

Thunderdome.

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Hutchy 19 Tuesday, 14 Sep 2021 at 6:01pm

I hope your right VL

But also hope it doesn't go as far as this .

"Andrew Bolt to get whacked. ie arrogant, happy to host defamatory comments on their sites, and wilfully provocative."

Your posts and maybe mine are a worry . I have tried to tone mine down , will you ?

You did on your last reply to me on the thread House Prices and it was appreciated . As I said 'well done "!

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indo-dreaming Tuesday, 14 Sep 2021 at 6:12pm

To file for defamation, dont you actually have to have some kind of reputation to defame, i mean seriously what could you say about that Voller kid to defame him?, go read about his history before his media exposure and after it the kid is complete gutter trash from day one until now.

Only way you could defame him is by saying something that isn't true, like saying he is a pedophile or something (which wasn't even possible as he was a kid)

Even in recent years 2019 from memory (read his wiki the other day) he has been in serious trouble with the law for a bomb threat and exposing himself.

BTW. I read you can only file for defamation within 12 months of an incident?

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zenagain Tuesday, 14 Sep 2021 at 9:09pm

I think he needs help Indo. A little love tough or otherwise wouldn't go astray.

Do you think that kid has ever been loved?

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Roker Tuesday, 14 Sep 2021 at 9:46pm

From the website of O’Brien Solicitors, who instruct the three barristers who act for Dylan Voller.

It seems the the greater good and wider principal at stake is;

“protecting individuals, especially those who are in a vulnerable position, from being the subject of unmitigated social media mob attacks.”

No word on where they stand on freedom of expression. But they elaborate;

“The media companies had posted links to articles about Mr. Voller on their Facebook pages. Some of the comments from the public on those Facebook pages stated that Mr. Voller had committed certain heinous crimes. While it is acknowledged that Mr. Voller has a criminal record for which he has been held to account and served his punishment, he had never committed anything as heinous as the specific matters being alleged in those comments. These comments caused Mr. Voller extreme emotional and mental distress.

It is commonly known that media companies encourage increased engagement on their posts so that their content is seen by a larger audience. This helps in attracting advertising revenue. With this strong commercial imperative driving them there was no doubt that the media companies lent their assistance to the publication of third-party comments. They did everything they could to encourage the same and it is disingenuous of them to say they played no role in publication.”

https://obriensolicitors.com.au/high-court-backs-dylan-voller-and-dismis...

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Hutchy 19 Wednesday, 15 Sep 2021 at 9:36am

"Do you think that kid has ever been loved?"

Zen . This doesn't give anyone an excuse to behave badly . No get out of jail free .

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etarip Wednesday, 15 Sep 2021 at 9:41am

It doesn’t matter whether Dylan Voller is a ‘well-behaved’ kid or not. The O’Brien explanation is pretty compelling. And there’s no ‘get out of jail’ card - he’s errrr, been to jail.

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zenagain Wednesday, 15 Sep 2021 at 9:46am

That kid never had a chance Hutch. Kick a dog enough times and eventually It's gonna bite.

Easy to say from the outside looking in.

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Hutchy 19 Wednesday, 15 Sep 2021 at 10:14am

Zen - You are right about kicking a dog . If it becomes a problem the poor beast then needs to be put down .

As I said it can never be an excuse !

At what level of being unloved do you think is an excuse ?

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zenagain Wednesday, 15 Sep 2021 at 10:51am

Jeezus mate, you're missing the big picture. I'm not condoning what he did but don't think for a minute I don't understand why. How can you have respect for anything if you don't have respect for yourself?

I'm hypothesizing but I'm guessing from the time that kid was in nappies (if he even had those) that he's had to fight for every single scrap he's had in life. As he got older he's had to rely on his wits to steal anything from his food to his next bong, he's probably copped a few floggings on the way and dished out some himself. He's been mentored by the worst people in the world to mentor him- those that are in the same boat. He'd been taught that the white man is evil but when he looked around himself he was witness to the violence, the grog, the hopelessness and the despair of his own mob. If that's the norm of his own people then the white man must be really fucked up. He has probably never felt truly safe in his life, or loved, or wanted, or needed. So whaddya reckon Hutch, put him down literally or figuratively? I would bet my house that as a littleun he's never had his dad piggy back him to bed, rough him up a bit, stroked his hair, given him a kiss on the forehead while he drifts off between clean sheets in a nice warm bed.

I don't have the answer but I can't get how heartless and dismissive some people can be. That fella needs purpose, boundaries, a reason for being, a path forward and more than likely treatment for mental health and yep, dare I say it- love. Jail might give him boundaries but he sure as shit won't get the other stuff.

Anyway mate, all easier said than done, there's a million others like him but until the root cause is addressed meaningfully, sadly he won't be the last.

Finally Hutch, with respect, not gonna get in a tit-for-tat with you, I'm a busy patient handsome man and have a long day ahead.

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derra83 Wednesday, 15 Sep 2021 at 11:00am

Once again Hutchy relentlessly pushes his narrow worldview until people give up. Notice the fewer usernames Swellnet?? A good way to kill a business.

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etarip Wednesday, 15 Sep 2021 at 11:00am

Well said Zen. A voice of compassion.

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Roadkill Wednesday, 15 Sep 2021 at 11:06am
derra83 wrote:

Once again Hutchy relentlessly pushes his narrow worldview until people give up. Notice the fewer usernames Swellnet?? A good way to kill a business.

Yep. 100% correct.

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Hutchy 19 Wednesday, 15 Sep 2021 at 11:09am

Zen . I agree with nearly all you say .

"How can you have respect for anything if you don't have respect for yourself?" Why do you write this ?

All I said and will say again is that lack of love or a bad upbringing can never be used to justify anyone behaving badly , especially in a court of law .

I do not know enough of this case to have an opinion what consequences he should face for his actions .

I will say that If you do the crime you have to do the time . I agree that jail may not help him but what are the alternatives for a person who commits a crime . Hugs and kisses wont help .

Don't spend too much time looking in the mirror !

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goofyfoot Wednesday, 15 Sep 2021 at 12:06pm

Zen - “ I would bet my house that as a littleun he's never had his dad piggy back him to bed, rough him up a bit, stroked his hair, given him a kiss on the forehead while he drifts off between clean sheets in a nice warm bed.”

You’ve got a way with words zen.
It would be interesting to know if you’re close to the mark there or not. I’m tipping you are.

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Roker Wednesday, 15 Sep 2021 at 12:15pm

I find this pretty confusing.

But isn’t Dylan Voller largely irrelevant to this matter now?

The media companies won’t contest the defamatory nature of the comments. Thus they won’t trawl thru his life to prove otherwise.

They’ll argue, as publishers, that they weren’t liable for the comments under the law as it was then. The law has since changed and may change again before it goes back to the NSW Supreme Court (I think).

Voller may or may not get a nice payout, which he’ll have to share with his presumably pro Bono (he won a previous settlement but I doubt he’s self funding this) legal team. Unless he has a white knight who perhaps sees the case as a way to clean up the discourse on social media?

The main concern is that the media companies are now considered publishers of third party content. And that will have future implications regardless of the outcome of the Voller case.

Maybe the parliaments could legislate away the High Court’s decision on publishing - but I think that would be extremely unlikely.

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stunet Wednesday, 15 Sep 2021 at 12:24pm

He is Roker, a mere digression is all, and I'm with Zen all the way there.

Until cases are heard and we know how the law will be interpreted then there's not much more that can be added to the issue beyond speculation (and more thorough policing from moderators). Oh, and a much bigger annual insurance bill.

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adam12 Wednesday, 15 Sep 2021 at 12:37pm

Stu, don't worry about insurance. Give Christian Porters office a ring, apparently there is a blind trust that just pays out defamation costs to anyone no questions asked.

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Vic Local Wednesday, 15 Sep 2021 at 12:39pm
stunet wrote:

He is Roker, a mere digression is all, and I'm with Zen all the way there.

Until cases are heard and we know how the law will be interpreted then there's not much more that can be added to the issue beyond speculation (and more thorough policing from moderators). Oh, and a much bigger annual insurance bill.

I don't know much about the online commentary of Voller but will assume it must have been pretty feral for this ruling.

I also think that more online moderating on the big sites will become necessary. Sorry Stu, I love you blokes, but you're not big league and probably don't have too much to worry about. If someone won a defamation action against Swellnet, by the time the lawyers took their pound of flesh, the winner would be lucky to get a handful of second hand surfboards!!

The big boy publishers will be able to protect themselves from expensive defamation actions by pro-active moderating when shit gets out of hand. Removing offensive third party posts, closing comments sections, removing original articles, and effective mediation are ways to stop the heavy hand of defamation action getting to court.

The big boys will quickly find technical ways to limit the spread of feral third party comments on their sites.

And before anyone starts screaming free speech, this is all about stopping shit speech, not free speech.

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indo-dreaming Wednesday, 15 Sep 2021 at 12:49pm
zenagain wrote:

I think he needs help Indo. A little love tough or otherwise wouldn't go astray.

Do you think that kid has ever been loved?

From his Wiki so we all know what we are talking about

"As of 2016, Voller had a troubled early life, and had been expelled and or excluded from primary schools in Alice Springs due to assaulting others, including breaking another child's arm in kindergarten. Dylan was in and out of juvenile detention since he was 11 years old, for car theft, robbery and assault.[2] He spent time at Don Dale Youth Detention Centre in Darwin,[2] Alice Springs Youth Detention Centre[3] and, aged 17, at Alice Springs adult prison. During that time he has been involved in more than 200 prison incidents of, self harm, assault on staff and others (some requiring hospitalisation of victims) since he was jailed for aggravated robbery and endangering a police officer in 2014. Voller has served two of the three sentences given to him over an alleged drug-fuelled crime spree in which he attacked a man and tried to run down a policeman."

"Later life[edit]
In 2019, the 21 year old Voller plead guilty to staging a bomb hoax at the Commonwealth Games marathon in Gold Coast.[22] On 1 February 2020 Voller was sentenced to a 10 month prison sentence due to an incident in which he jumped on railway tracks, exposed his penis and assaulted a transit guard in Western Australia.[23] Voller also had a warrant issued for his arrest by the Deniliquin Local Court in NSW on 19 June 2020 in relation to an armed robbery that occurred in Moama, NSW in May 2019.[24]"

Yeah sure you can blame the parents and feel sorry for him, but kid is now an adult and a total lost cause, if he lived in my area id be real concerned on what he could potentially do in the future.

I just think it sucks that he will probably get a pay out and maybe even probably enjoy some notoriety.

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Roker Wednesday, 15 Sep 2021 at 12:56pm

"Anyway mate, all easier said than done, there's a million others like him but until the root cause is addressed meaningfully, sadly he won't be the last."

The latest Law Report is a good one. Sadly very much a confirmation of Zen's (excellent) comments - some insightful and disconcerting testimony from some smart and dedicated people who've been at the coal face of youth welfare and crime in Alice Springs for a long time - as well as dealing with the Voller case specifically.

https://www.abc.net.au/radionational/programs/lawreport/voller-defamatio...

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Roker Wednesday, 15 Sep 2021 at 1:15pm

"The big boy publishers will be able to protect themselves from expensive defamation actions by pro-active moderating when shit gets out of hand. Removing offensive third party posts, closing comments sections, removing original articles, and effective mediation are ways to stop the heavy hand of defamation action getting to court.

The big boys will quickly find technical ways to limit the spread of feral third party comments on their sites."

Yeah I reckon that's pretty much on the money VL, that'll be the main consequence. I think the big players won't wanna close comment sections down tho. They might even have to employ an extra human-being or two to keep on top of them! Silver linings.

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etarip Wednesday, 15 Sep 2021 at 1:22pm

No ones saying that DV is the kind of bloke you’d want your kids hanging around. When he commits crimes against persons or property there is a legal recourse. When crimes are committed against him, he needs to have recourse. He wasn’t paid out because of the crimes he committed. He was paid out because injury was committed against him.

Allusion to ‘putting a dog down’ like a commentator said above is missing the point.

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thermalben Wednesday, 15 Sep 2021 at 1:46pm
Vic Local wrote:

Sorry Stu, I love you blokes, but you're not big league and probably don't have too much to worry about. If someone won a defamation action against Swellnet, by the time the lawyers took their pound of flesh, the winner would be lucky to get a handful of second hand surfboards!!

I'd hazard a guess that most small publishers don't have any finances/resources to put towards defending defamation action, no matter how frivolous the matter might be. Our insurance came up for renewal a few months ago (before this ruling) and the cost had doubled in the last 12 months. I wonder how much it'll cost next year?

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Vic Local Wednesday, 15 Sep 2021 at 1:58pm

My insurance doubled too, despite a fraction of our usual number of events. Fucking scammers know how to screw their clients. The only way to deal with these fuckers is to request a few quotes well in advance of the due date.
BTW small operators aren't great targets for defamation actions. No point suing some little organisation into liquidation. I know an ex Labor hack who would publish highly defamatory shit on a weekly basis. He never got sued because his main asset was a 1975 Cortina.
BTW, I wish I had a dollar every time some political crook said they would "keep their legal options open" re defamation, and then quietly drop the whole thing.

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Constance B Gibson Wednesday, 15 Sep 2021 at 4:52pm
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Constance B Gibson Thursday, 16 Sep 2021 at 12:53pm
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bonza Thursday, 16 Sep 2021 at 1:11pm
Constance B Gibson wrote:

Hello? Is it me you're looking for?

https://www.crikey.com.au/2021/09/14/craig-kelly-changed-his-number/?fbc...

haha. very good

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Constance B Gibson Thursday, 16 Sep 2021 at 5:29pm
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velocityjohnno Thursday, 16 Sep 2021 at 6:10pm
thermalben wrote:
Vic Local wrote:

Sorry Stu, I love you blokes, but you're not big league and probably don't have too much to worry about. If someone won a defamation action against Swellnet, by the time the lawyers took their pound of flesh, the winner would be lucky to get a handful of second hand surfboards!!

I'd hazard a guess that most small publishers don't have any finances/resources to put towards defending defamation action, no matter how frivolous the matter might be. Our insurance came up for renewal a few months ago (before this ruling) and the cost had doubled in the last 12 months. I wonder how much it'll cost next year?

Remember the Co. insurance bill going up 1100% after Sept 11 attacks, not a publisher tho, the CFO wasn't happy.

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Westofthelake Thursday, 16 Sep 2021 at 6:36pm
Constance B Gibson wrote:

Freedom warriors.

https://arstechnica.com/information-technology/2021/09/anonymous-leaks-g...

Good stuff Connie. Ain't free speech grand. Heck, ain't anonymity grand!

Nice hat by the way.

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thermalben Thursday, 16 Sep 2021 at 6:41pm
Vic Local wrote:

BTW small operators aren't great targets for defamation actions. No point suing some little organisation into liquidation.

Seems like a pretty good strategy if you'd like to put them out of business.

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frog Thursday, 16 Sep 2021 at 7:32pm

Lots of motivations behind defamation actions.
Revenge
Destroy competition
Silence critics
Mischief
Power trips
Political agendas
Etc.

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stunet Tuesday, 28 Sep 2021 at 10:06am

"The Tasmanian premier Peter Gutwein’s decision not to allow comments on some Facebook posts is likely just the beginning of the broader ramifications of a high court decision on liability for third-party comments on social media, according to one defamation law expert."

https://www.theguardian.com/law/2021/sep/27/high-court-ruling-on-third-party-social-media-to-see-widespread-shutdown-of-comments-expert-says

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Robwilliams Wednesday, 29 Sep 2021 at 1:22pm

liability won't remove the underlying issues of those who are vocal, Will we see a return to political art or is that going to be targeted too? Talk about dumbing down debate at a critical time. Over the top in the land of the free.

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Constance B Gibson Wednesday, 29 Sep 2021 at 1:53pm
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thermalben Thursday, 30 Sep 2021 at 8:30pm

Off-topic comments have been, and will continue to be deleted.

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JQ Thursday, 30 Sep 2021 at 8:33pm

Good move. Apologies for going off track.

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old-dog Thursday, 30 Sep 2021 at 8:48pm

Classic, about time the mods did a bit of censoring.

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tubeshooter Thursday, 30 Sep 2021 at 9:21pm

What a relief , but I wouldn't consider this censorship though. It's been hard to try and remember which thread I'm looking at after reading a few posts lately.

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Fliplid Monday, 11 Oct 2021 at 3:57pm

Murdoch and Nine are on side, ABC is self censoring, court cases have had a dampening effect so now the socials are next on the list.

Hard to remember when the LNP was so fired up about something. Wonder if the legislation is in before the next election (or ICAC legislation)

https://www.abc.net.au/news/2021-10-10/joyce-says-government-not-joking-...

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Blowin Monday, 11 Oct 2021 at 4:22pm
Fliplid wrote:

Murdoch and Nine are on side, ABC is self censoring, court cases have had a dampening effect so now the socials are next on the list.

Hard to remember when the LNP was so fired up about something. Wonder if the legislation is in before the next election (or ICAC legislation)

https://www.abc.net.au/news/2021-10-10/joyce-says-government-not-joking-...

The LNP have been this fired up about censorship, restrictions on press and speech freedoms and control of public discourse for a long time. Just another shot in the war.

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Vic Local Monday, 11 Oct 2021 at 4:36pm

Scumo is doing a pre-emptive strike on social media simply because those platforms are where people expose his government's corrupt shitfuckery.
Defamation laws still apply to those posting on social media. Scumo just wants to put the big boys on notice so they cut down on whistleblowers and people who make scumo look bad. And no, that isn't an endorsement of how Facebook and other social media companies operate.
One thing Scumo does understand is power. He wants to increase the megaphones of scumbags like Murdoch, and silence those who hold the LNP scum to account.
And he also ignores all his shitful MPs who use social media to attack their critics. Andrew Laming had 30 troll accounts. Angus "Well Done" Taylor and Mandy Jane Stoker. What a fucking hypocrite.

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indo-dreaming Monday, 11 Oct 2021 at 4:37pm

ha ha VL that almost sounds like a conspiracy theory.