Judge retires to consider decision in landmark Dylan Voller defamation case

On Friday, Justice Stephen Rothman reserved his decision after a three-day hearing which considered the crucial question of whether Mr Voller has established publication by the media organisations. It is the first time the issue has been tested in Australia.


If the defendants are found to be publishers of comments by third parties, it could have wide-reaching consequences for the way media organisations operate on Facebook.

Justice Rothman acknowledged that whatever he decides, the case is likely to be appealed and considered by a higher court.

In closing submissions, the media organisations’ barrister James Hmelnitsky, SC, said the law already provides a remedy to those who are defamed in Facebook comments.

«Every single one of those commenters can be sued,» Mr Hmelnitsky said.

He said commenting is «part and parcel» of Facebook and pointed out that the NSW Supreme Court has its own public Facebook page on which comments cannot be switched off. He said when a topical judgment is posted, «the trolls pile in».

«These [media] organisations are no different than the Supreme Court,» Mr Hmelnitsky said.

«There isn’t a basis, in the evidence or on the basis of any of the authorities, to find any of the defendants a publisher.»

Mr Hmelnitsky said it is established law that publishers have liability when they have been given notice of a defamatory item and have failed to take it down, however there was no such notice in this case.

«There was no complaint about these publications. There was no phone call, email, letter, notice of concerns or anything of the like. The first notice any of these defendants received … was after a statement of claim had been filed, settled, and served,» he said.

Mr Voller’s barrister Tom Molomby, SC, said the media organisations had no systemic policy in place to monitor Facebook comments and they «must have known» defamatory comments were «highly likely».

«That embraces negligence. It’s more than negligence, it’s actually reckless,» he said.

Mr Molomby said his client was a young and vulnerable man, and the media organisations put Mr Voller and others like him in a «completely oppressed, impossible situation» by asking him to notify them of defamatory comments so they could be taken down.

«For someone who is in the eye of public controversy, whether it’s Mr Voller – or what about Adam Goodes and what happened to him – such a person is going to be, utterly predictably, commented on in hundreds and hundreds of different locations, and much of it is going to be defamatory,» Mr Molomby said.

«There is no way … an individual is going to be protected if proprietors of Facebook pages can invite material willy nilly, and have it sit there for as long as the person doesn’t know about it and give them a notice to take it down.»

Mr Molomby said it would be a «difficult and expensive exercise» to track down dozens of individual Facebook commenters who made the statements about Mr Voller, and who «may or may not have means» to pay damages to him.

«That may be why they’re so bold in saying what they say,» Mr Molomby said. «They know they’ve got nothing to lose.»

Justice Rothman said he would try to deliver a judgment quickly.

Georgina Mitchell is a court reporter for The Sydney Morning Herald.

Источник: Theage.com.au

Источник: Corruptioner.life


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