Dylan Voller, the Aboriginal man who was shown restrained and wearing a spit hood at age 17 in shocking CCTV footage from an adult prison, has been given the green light to sue media companies over Facebook comments written by their readers.
The landmark decision has been described as a "significant win" for the former youth detainee, and will be met with alarm by media companies wary of being hit with lawsuits over what their readers are writing on social media.
Voller, now 22, spent his teenage years in and out of juvenile detention, and rose to prominence when CCTV footage of his treatment behind bars was aired on the Australian Broadcasting Corporation’s investigative current affairs program Four Corners in July 2016.
He is suing News Corp, Fairfax Media (now Nine), and the owner of Sky News Australia for defamation over comments on Facebook posts sharing various news stories.
The stories related to various aspects of Voller's life, including the royal commission into children in detention in the Northern Territory, his time in custody and his poetry.
Voller claims a number of comments on the post defamed him by falsely suggesting, among other things, that he "savagely bashed" a Salvation Army officer, causing him serious injury, and that he is a rapist.
These comments were written by readers.
Before Voller's case went to trial, Justice Stephen Rothman considered whether the media companies could be considered liable for the reader comments.
The three companies argued they were not liable during a three-day hearing in February, in which social media managers took the stand and were questioned about how they monitored and moderated Facebook comments.
Rothman ruled in Voller's favour on Monday afternoon, finding that the media companies were the publishers, in a legal sense, of the comments.
The judge wrote that each company had the power to effectively delay reader comments on Facebook and monitor if they were defamatory before "releasing" them to the audience.
This was based on evidence from social media expert Ryan Shelley, who testified that although you can't turn off comments on Facebook posts, you can deploy a "hack" to pre-moderate them.
Shelley's hack involves putting 100 of the most commonly used words in the English language ("a", "the", etc) on a Facebook filter list, causing any comment containing those words to be automatically hidden from the public.
Only the commenter, their Facebook friends and the person running the page would be able to see the comment.
At the hearing, Shelley conceded that a one-word post containing a word that is not among the most common — e.g. "criminal" or "rapist" would not be blocked, and neither would picture comments.
The social media editors variously said they didn't think the hack would work, taking up too much time and defeating the purpose of publishing stories for public discussion.
But Rothman found each company could reasonably monitor comments if they had sufficient staff to do so.
Rothman said that each media company running a public Facebook page had "little to do with freedom of speech or the exchange of ideas".
"Rather, the media companies’ use of a public Facebook page is about their own commercial interests," he said.
He acknowledged that "of course" it is the reader who writes the comment and posts it, but the media companies had brought about that result by running a public Facebook page where the comment could be seen, and by not hiding and moderating comments.
The comments are therefore published, for defamation purposes, by the media companies, he wrote.
"Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments."
Rothman said the media companies were primary publishers, but added if he is wrong on that, they are still secondary publishers and can be held liable, having "plainly" participated in publishing the comments.
The media companies had argued they had no knowledge the comments had been posted until the lawsuit was filed.
Voller didn't argue they had known about the comments, or failed to take them down after being asked to — and with no knowledge and no notice, they can’t be held liable for publishing them, the companies argued.
Rothman wrote that "a defendant cannot escape the likely consequences of its action by turning a blind eye to it".
The companies were ordered to pay Voller's costs.
His solicitor Peter O'Brien said in a statement that the ruling was a "significant win" for Voller and others who might find themselves in the public glare.
"This kind of free-for-all commentary can be extremely negative, untruthful and damaging to a person’s mental health," he said.
O'Brien said the decision clarifies the law around social media platforms, and will lead to greater understanding of how defamation law intersects with new technology.
"It also encourages a more responsible and socially minded approach by the large media companies to their use of Facebook," he said.
The case can now move forward to trial. It is open to the media companies to appeal the decision.