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A case that has shaken the media world in Australia

Australian Precedent Could Land UK Media (and Other Businesses) in Hot Water

Oct 2019


A case that has shaken the media world in Australia, has seemingly gone largely unnoticed on the global stage, despite the ramifications for businesses that should now perhaps be checking that they have relevant and sufficient insurance cover in place.

The case involved the relationship between media publications and their Facebook and other social media pages. The rationale behind the judgement that resulted, represented a crystallisation of the way in which digital publications seek to grow their readership – and earn more advertising revenue – by driving traffic earned from engagement on social media, to their digital platforms.

In the UK, we have seen a continued trend towards publications becoming digital only, the latest print casualty being women’s magazine, Marie Claire, which has ceased publishing a print edition in the UK, after 31 years as ‘the thinking woman’s magazine.’ Despite this, there is no digital news platform in the world that has yet found a way to encourage advertisers to spend the money online that they would spend on advertising offline.

Until now, the strategy of encouraging comments on social media, generated through links to online articles, has been deemed a sound business tactic in the pursuit of this holy grail. The comments have sparked an interest in the article concerned and have helped drive traffic back to the website on which it is hosted, thus increasing the popularity of the site – something potential advertisers wish to see.

But, following the posting of a link to an article about a former youth detention detainee, who featured in an Australian TV programme, the Facebook pages of The Sydney Morning Herald, The Australian, SKY News, The Bolt Report and the Centralian Advocate, all had defamatory comments about the youth posted online. These remained unmonitored, despite containing allegations of rape and malicious wounding.

The youth consequently brought actions against the media owners of these titles, which resulted in the judge making the groundbreaking ruling that these media houses were liable for the defamation caused by third party commentators on Facebook, as they were the primary publishers of their readers handiwork i.e. the third-party social media comments.

The judge also accused the defendants of “exciting the interest of Facebook users” to increase the number of subscribers to the digital media publications attached to them, whilst also increasing the profile of their paper and websites. On a typical day, the court heard that The Australian generates 39% of its monthly visitors to its website, and 53% of its unique visitors, from its Facebook posts.

Once this ruling in Australia becomes more common knowledge here in the UK, the impacts will most probably be the same. Lawyers are likely to start monitoring websites for defamatory content and encouraging clients to bring actions similar to the Australian case. The legal position with regard to the relationship between digital news platforms and their social media users has potentially changed forever, given the precedent that the Australian case has provided. Media publishers, or indeed anyone benefiting from business news that drives traffic to their websites, following posts online that encourage defamatory responses, could find themselves in court.

To discuss how to protect your business against such actions with the help of an insurance broker, who can get the right legal covers in place, please use our ‘Find a Local Broker’ tool. In a world in which social media is now so engrained in life, it pays to be guarded about what you post and how you then leverage the resulting engagement from it.

Sources:

1. https://www.theguardian.com/media/2019/sep/10/marie-claire-uk-cease-print-publication-after-31-years

2. https://www.abc.net.au/news/2019-06-24/court-finds-media-liable-for-facebook-comments-by-public/11240826

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