This judgment will chill us all
The judge”s answer is for publishers to use Facebook’s word-filtering tool to rule out every comment that includes “common words … such as ‘he’, ‘she’, ‘and’, ‘the’ or ‘a’.” This would mean all comments on our posts would be blocked so we could vet every one and let through only those we deemed acceptable.
Facebook is, for better or worse, the modern version of the public square. In this judge’s opinion, people should be locked out of the square, interrogated by gatekeepers, and then only allowed a voice if their opinions are so anodyne that they satisfy Australia’s oppressive defamation laws.
There is nothing wrong with having defamation laws – people have a right to protect their reputation from unreasonable or untrue speech. But the law should balance that with the right of freedom of speech and Australia’s laws have veered away from that balance.
In any event, according to Justice Rothman, the public Facebook pages of media organisations have “little to do with freedom of speech or the exchange of ideas”. In his view, they exist purely to serve the media’s commercial interests. To administer the judge’s regime we would be employing Facebook gatekeepers instead of journalists to hold the powerful to account.
Our defamation law is no help. It was enacted before social media existed, so the judge was left to grope around with legal precedents about people sticking defamatory posters to the outside of someone else’s building.
Comparable countries have done much better. In the United States, “No provider or user of an interactive computer service shall be treated as the publisher.” In Britain, a full defence to a defamation suit is that “it was not the operator who posted the statement”. However, if someone complained about it, the media organisation would need to respond.
If the British law had been in place, the media here would no doubt have quickly deleted the offending post. No harm done.
Instead we have an expensive defamation case and precedent that will chill us all.