We need to throw out defamation law and start again

Depending on your favoured opinion writer, the outcome of Dylan Voller’s defamation case against Fairfax, News and others is either an appalling imposition on the freedom of the press and a death sentence for the media; or exactly what the click-baiting bastards deserve.

Actually, both hot takes are true but neither legal theory nor schadenfreude is going to advance our society much in its digital modernity. The judgment, delivered by Supreme Court Justice Stephen Rothman, exposes in clear terms the collision which was always inevitable between two runaway trains: a media driven by the need to attract digital eyeballs for a few seconds at a time, and a defamation law written for the 19th century.

Voller is the famous “spit hood” boy of Don Dale Youth Detention Centre in Darwin, the subject of a lot of media interest a couple of years ago. The media’s articles were posted on their Facebook pages, where they attracted a tonne of reader commentary, much of it disgusting. Quelle surprise. Voller sued.

The court dealt with a preliminary question before getting to the main case: are the media companies “publishers” of the defamatory comments on their Facebook pages? The answer from Rothman was yes, they are. That makes them just as liable as the people who wrote the comments, in the same way that a newspaper publisher is liable for everything it prints.

The law here and overseas had been trending in the direction of not holding “passive” online publishers responsible for material that third parties put up on their sites. The general thought was that, in a context like an open comments page, the owner might become liable once put on notice of a defamatory post if they didn’t act quickly enough to take it down; but not that they could be liable automatically for posts they haven’t even seen.

The judge rejected that theory. The media, he said, “cannot escape the likely consequences of its action by turning a blind eye to it”. That action is running an open Facebook page as a portal for its content, hoping that it will attract high traffic volume and plenty of comments, and knowing that inevitably some of those comments will be feral. Basically, they were begging for it.

Legally speaking, that’s pretty sound logic. The media in these post-advertising revenue times is all about social media clicks; apparently The Australian gets 40% of its traffic via Facebook. They do know exactly what they’re doing; they do write headlines as bait, and their content is designed to create controversy. On social media, controversy means trolls. If you give an arsonist a match, don’t be surprised when the cops come for you.

On the other hand, what the hell? Accepting that the media is playing with fire on social media… aren’t we all? Holding them legally responsible for the excrement that some sunlight-deprived idiot still living with his parents chooses to type as a momentary salve to his own pointlessness, isn’t that just a bit too nanny state? And anyway, hello, First Amendment?

Haha, yes, we have no First Amendment, free speech, free press etc but we do still have a media that strongly believes it is entitled to specific human rights which it happily acquiesces in the government taking away from the rest of us.

Well, I agree. With everyone. The media’s horror at this judgment is entirely justified, because it drives a Supreme Court right through their current business model. How do they compete with non-traditional media if they can’t engage the trolls? To put it another way, when nobody reads newspapers or watches the news anymore and the only viable source of media revenue is Google, you need activity. All the time.

Nevertheless, they did have it coming and their wilful blindness was not only to the shit being posted on their pages, but also to the law.

The law, however, is just a blunt tool we wield to decide arguments that have no obvious answer. The fact that, as it has been developed, defamation law says the media is liable to Voller, doesn’t mean that it should.

The law has been grappling with the digital world for ages — mostly badly. There is a detailed defamation law review happening right now, with hopes that Australia might lose its status as the world’s most plaintiff-friendly jurisdiction. It is, however, framed around the flawed idea that media is still media, as we’ve always understood it. But it isn’t.

The critical and often missed fact is that publication is no longer a physical, definitive act. It is dynamic and continuous, interactive and borderless. It is artificial to pretend that the media can control its own content like it used to, and crazy to insist that it try. That just leads us away from a free press. I’ve written about the disproportionate nature of social media defamation claims; the Voller case is another stark pointer to the urgency of the need to throw the law out and start again.

In the end, this will be a good thing. The existing media paradigm is now, not just commercially but legally too, officially broken. What replaces it won’t necessarily be worse. How quickly or slowly that comes about will be heavily dependent on how soon we accept that the law is broken too.