Under current defamation law, social media users can be held legally responsible for third-party content on any post they make.
The guiding rule seems to be: You posted it. You incited it. Ergo, you’re responsible for it.
In other words, anything someone posts on my timeline or writes in the comments section, that is deemed offensive, defamatory or “hate speech” could end in a lawsuit.
For those who only have a private Facebook account, there is currently no mechanic to prevent this from happening. The only real preventative measure is to keep an eye on comments or keep your friends and comments list small, simple and drama free.
For those who choose to have a public Facebook page, there are two ways to solve the problem before it becomes one. First, Facebook’s mechanism for pages allows content providers to filter (block) certain words. The second way is to have dedicated moderators screen every comment.
Anti-defamation and anti-discrimination laws are great servants, as long as they remain a shield. However, these laws make for a terrible sword in the hands of an opportunist who views everyone not in agreement with them as a traitor, hater or “literal Nazi”.
Defamation laws weren’t written with social media in mind. David Rolph, professor of law at UNSW, highlighted this in his piece for Sydney Morning Herald, where he advocated reform, stating that ‘the last consideration of defamation law by the Australian Law Reform Commission was almost 40 years ago, decades before the advent of the internet.’ (SMH, 2018)
Rolph also mentioned the need to ensure a balance between upholding freedom of speech, and policing false speech; ensuring that people don’t have their reputations unfairly damaged, and can find ‘effective redress, through last resort financial compensation, or more easier remedies of retractions, corrections, and take-down orders’ for online content that is clearly false or blatantly misleading.
The Australian took to an editorial last week to call upon the government to ‘overhaul defamation laws’ after a recent supreme court ruling looks set to establish a precedent, making ‘media companies legally responsible for comments made by other people on the company’s social media pages.
In essence, companies with a public Facebook page are liable for third-party content on their pages. The editorial noted, however, that ‘moderating, blocking or hiding comments, is untenable because of the volume of material that works its way through pubic pages, and the amount of resources it would take to do so; and even though Facebook hasn’t provided a mechanic which allows for comments to be turned off, Facebook isn’t held responsible.’ (The Australian, 2019)
In a recent case related to this, conservative Facebook page, Political Posting Mumma, administrated by mum of four, Marijke Rancie, was sued and pressured into agreeing to a large financial settlement out of court, because of third party content on her Facebook page.
While some third party comments were obviously wrong, and defamatory, Marijke’s original post and comment wasn’t intended to be so. Despite this, and the fact that Facebook doesn’t have a disable comments section, Marijke was, under current defamation law, considered liable for the comments made by others on her Facebook page.
This was confirmed twice by BuzzFeed who cited the plaintiff, Adele Moleta, saying that ‘she was defamed by multiple (200) comments on the post and that Marijke is, for legal purposes, the publisher of those comments’. (BuzzFeed, 2018)
In a disproportionate response, apparently designed to intimidate Marijke, Moleta was backed up by a ‘lawyer on a no-win, no-fee basis, and two pro-bono barristers, one of whom is a QC’ to fight her case against Marijke.
Those looking to make an example of Marijke, because of her outspoken “no” against Same-sex marriage, concerns about the ‘Safe Schools’ program, and concerns about teaching LGBT ideology being given centre stage in schools, found a reason, under current defamation laws concerning third-party content, to do so.
It’s worth noting that while BuzzFeed acknowledges the alleged pain and suffering caused to Moleta by Marijke, BuzzFeed has, since December 2018, posted four articles by Sainty Lane, revisiting the cause of that alleged pain and suffering in minute detail.
Lane also published an article this week discussing the need to vet comments, referring to the same court ruling as the editorial from the Australian.
Lane confirms the problem of defamation laws and third party content, yet gives no mention of the case against Marijke. Even though, Marjike was sued under the premise that her Facebook page was a media company.
Lane also acknowledged the difficulty in policing third party comments, stating that there is ‘no official way to turn off comments’ [i] on Facebook, citing solicitor, Hannah Marhsall as saying “I feel like the legal system and the internet are on this collision path. And what’s going to happen next is really hard to figure.” (BuzzFeed, 2019)
One of the biggest challenges to any reform of defamation law is the contentious term, “hate speech”. This is broadly defined by Facebook as anything that is
‘a direct attack on people based on what we call protected characteristics — race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability. We also provide some protections for immigration status. We define attack as violent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation.’ (FB, 2019)
Facebook provides no explanation of the latter, and seems to be content with filing it in under the banner of “hate speech”.
Social media companies appear vague and unconcerned about users being sued for defamation because of third party comments made on their own social media posts. These companies also appear to be aloof when providing an objective rounded definition of what ‘dehumanizing speech’, ‘statements of inferiority’, ‘calls for exclusion’, or ‘segregation’ are.
If dehumanizing speech is “hate speech”, why hasn’t Facebook addressed Leftists who use pejorative terms for Christians on their platform? Why does Facebook allow comments that falsely equate Donald Trump with Hitler, or falsely equate any person who gives Trump a cautious “yes”, a Nazi, homophobe, Islamophobe or racist?
And as Republican Senator, Dan Crenshaw said to Google this week, ‘we fought the Nazis. It makes sense to conclude that by you calling a person a Nazi, you’re inciting violence against them.’
Though the term is widespread, no one really seems to know what “hate speech” actually is; it’s as vague and asinine as the phrases “woke”, and “love is love”. [ii]
From Marijke’s example, The Australian, and BuzzFeed’s Saintly Lane’s own observations, it’s easy to see how ambiguous terms like “hate speech”, and unreformed, complex defamation laws, could be used to the advantage of anyone wanting to justify forcing conservatives and Christians out of the public sphere. These could also be used to the advantage of anyone wanting to punish Christians because of perceived wrongs, or because the Spirit and Truth that Christians uphold, does not align with whatever, and whomever, the zeitgeist (spirit of the age) tell us all to worship.
Some LGBT lobby groups already police speech, seeking to punish people for using “incorrect” gender pronouns or for misgendering someone who identifies as LGBT. With the large amount of resources and financial backing for LGBT lobby groups, it would be naïve to think that surveillance of high profile Christians and conservatives on social media doesn’t happen.
Chris Tomlinson, from Brietbart, reported a case this week, where a 52 year old Swedish man, who was an administrator for Facebook group, ‘Stand up for Sweden’, was convicted of “hate” comments made by other Facebook users. The page was reported to police by an ‘online social justice activist group, called Näthatsgranskaren, which has been touted as being responsible for a rise in investigations and prosecutions for online hate speech in Sweden.’ (Breitbart, 2019)
Dialogue is the higher ground in conflict resolution. Lawsuits are a last resort. No one should be bullied, sued or intimidated for speaking truth in love, or be reprimanded and silenced for sharing their faith. Nor should they be punished for providing fair criticism, or for sharing their concerns about socio-political issues with others online.
Continue to speak boldly, and with grace, but until defamation laws have been reformed, and until Social Media companies improve their user interfaces, vet comments because if third party content can and be used against you, it will be.
Rolph, D. 2018. Australia’s defamation laws are ripe for overhaul, Sydney Morning Herald, 9th Dec. 2018 Sourced, 2nd July, 2019
Sainty, L. 2018. One of the faces of the SSM “no” campaign is being sued over a Facebook post, BuzzFeed 20th December, 2018. Sourced 2nd July, 2019.
Saintly, L. 2019. How a Queer woman took on a prominent conservative activist and won $100,000, BuzzFeed, 18th June, 2019. Sourced, 2nd July, 2019.
Saintly, L. 2019. “Political Posting Mumma” has issued a rare apology over comments on one of her Facebook posts, BuzzFeed 24th January, 2019. Sourced 2nd July, 2019.
Saintly, L. 2019. The Woman behind “PPM” has Apologised after being sued over a Facebook Post, BuzzFeed, 4th June, 2019. Sourced, 2nd July, 2019.
Saintly, L. 2019. This Court ruling on Facebook comments is a huge headache for the Media, BuzzFeed, 28th June, 2019. Sourced 2nd July 2019.
Tomlinson, C. 2019. Swedish Man Convicted of hate comments he did not make, 28th June, 2019. Sourced, 2nd July 2019.
[i] The Facebook mechanic for pages is useful, but their user interface is ultimately useless to anyone looking to moderate a page by themselves. Comments are piled into one notification, and each individual comment has to be viewed in order to see them. If you have 100 plus comments every post, it’s the equivalent of a fulltime job just to keep up. Even turning comments off, if that function was available would cause problems. This is because comments are an important part of the Facebook algorithm when it comes to bumping posts on newsfeeds.
[ii] Back in February, a 70 year old Swedish man was charged with “hate speech” for posting on Facebook that “Somalis are lazy”.
Originally posted on The Caldron Pool, 3rd July, 2019.
©Rod Lampard, 2019