Defamation, Facebook, and Memes

Why our judges could do with some more memes in their lives.

A NSW Supreme Court judge recently decided in Voller v Nationwide News that owners of public Facebook pages can be sued if anyone makes a defamatory comment on their page. Unless his decision is overturned on appeal, popular Facebook pages will be forced to cobble together a filter that blocks all comments containing ‘words such as “he”, “she”, “the”, “and” or “a”‘, pending approval by a moderator.

This leaves memes as the one of the only forms of online communication that will get through the filter, with two consequences. Firstly, it’s time for our generation to claim our birthright and embrace the aggressively virulent art form that is the meme. But more seriously, this decision eloquently demonstrates that the adults in charge have absolutely no idea what they are doing, and we students should not be afraid to challenge them.

Memes Are Cool

The crux of the judgment is that Australian defamation law now deems Facebook page owners to be ‘primary publishers’. They are treated as if they wrote the comments themselves, because they make the comments available to the public, and they have the power to block the comments. Only, they don’t.

At paragraph 205, Justice Rothman said,

…by the use of a list of prohibited words that includes words that would be necessary to render any comment intelligible, such as all pronouns; the definite and indefinite articles; and all conjunctions and prepositions, the [Facebook page] Administrator is able to hide all comments, pending the monitoring of such comments.

How quaint! Hand it to a judge to think that online communication requires full sentences, grammatically correct and pristinely formed. It’s not a good look for the legitimacy of the justice system when a judge makes a pronouncement of fact that can be dismissed in an instant by anyone under the age of 25.

Back in our high school days, shoddily edited images overlaid with white capitalised ‘Impact’ font were the memes of choice. These days, Facebook has three native forms of communication that administrators cannot block: gifs, emojis, and stickers.

For a start, defamatory imputations can be conveyed through gifs – and aggressively, too. ‘You Lying Piece Of Human Trash’ is an extract from actor Bill Hader’s performance in a recent Saturday Night Live skit.

Emojis can also convey defamatory imputations. Since all these emojis are part of Unicode, they are always accessible, in any language, anywhere in the world. For example, it is fairly straightforward to allege that a politician mentioned in a news article is corrupt. 

Certain memes have even been immortalised in Facebook’s own stickers. ‘You Sit On A Throne Of Lies’, which nods back to a scene from the 2003 Christmas comedy film Elf, could be similarly provocative, depending on the context.

Considering the range of creative uses to which the eggplant, sweat droplet and peach emojis have been put, it’s clear that people would find ways to communicate more detailed allegations by combining these techniques. The meanings of these snippets would develop through implications and shared understandings, as memes always have.

The Adults Need Help

Even putting aside the creative vagaries of meme culture, there is a more fundamental technical problem with Justice Rothman’s filter. A Facebook commenter can encode specific and detailed allegations in hyperlink previews. For instance, a (false) defamatory imputation in Voller v Nationwide News was that Dylan Voller had assaulted a Salvation Army officer, leaving him blind in one eye. Circumventing the filter is as easy as typing the allegation into a Google search and copying the resulting URL into a Facebook comment.

There are likely many more potential hacks beyond those canvassed in this article. The underlying perversity comes from making one group of people (page owners) responsible for the actions of another group of people (commenters) when, in reality, the former cannot fully control the latter.

Circumventing the filter is as easy as typing the allegation into a Google search and copying the resulting URL into a Facebook comment.

A Supreme Court judge who graduated from UNSW more than 40 years ago should have foreseen this. Coming to a legal decision should require an honest attempt to understand the facts, even if that requires a bit of interdisciplinary adventurism, or – god forbid – learning something about the young folk.

It is not good enough for a judge to simply read a 2013 judgment about a Hong Kong-based internet forum, and extrapolate that ‘at least on the facts stated in other judgments’, comments cannot be blocked on public websites. Every person who has ever dabbled in blogging or touched WordPress can attest that this is not true. Website owners have full control, whereas Facebook page owners are beholden to Facebook’s whims. 

University students frequently take for granted the skills we pick up from all the time we spend on the internet. It’s easy to forget that the people who run our world don’t have these skills. This provides us with a valuable and overlooked niche. Voller v Nationwide News is a clear case where the input of a young person would have dramatically altered the outcome.

As it stands, Justice Rothman’s decision currently represents the law in Australia. The Sydney Morning Herald and the Australian newspapers are likely to appeal the decision in the coming months. If they succeed, sanity will have prevailed. And if they don’t?

Bring on the memes.

Henry Chen is a third year International Studies/Law student at the University of New South Wales, currently on exchange at Sciences Po Paris. He’s fascinated by the nexus between law, media, and technology!

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