Dr. Faith Gordon is a Lecturer at Monash University, Melbourne, Australia. Faith established and is the Director of the Interdisciplinary International Youth Justice Network; a Research Associate at the Information Law & Policy Centre, Institute of Advanced Legal Studies, London and a Senior Visiting Research Fellow at the Centre for the Study of Democracy, University of Westminster. She has teaching experience in the areas of: Criminal Law, Evidence, Criminal Justice Processes, Social Media Law, Youth Justice and Victimology.

Twitter: @Dr_FaithG; @YouthJusticeNet; @MonashCrim

Spotlight on Australia’s Youth Justice System

The Youth Justice System in Australia has been described for quite some time as undergoing a series of ‘crises’. A significant investigatory report by the ABC entitled: ‘Australia’s Shame’ was aired on 25 July 2016, exposing the extent of the crisis in the Northern Territory (NT). It contained confronting footage and imagery of an indigenous child, Dylan Voller, who was forcibly restrained, strapped to a restraint chair and hooded, at Don Dale youth detention centre. These images were amongst many other pieces of evidence which clearly symbolised and recorded the extreme physical violence and psychological abuse directed towards vulnerable children in non-fit for purpose prison settings. At the time, it sent shockwaves throughout Australia and the international human rights community.

The Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) was promptly set up to investigate. The Commission’s report confirmed that over the past decade, children detained in the NT had been undergoing treatment and regimes which clearly breached Australia’s international human rights obligations and some domestic laws. Serious concerns about the state of children’s rights in Australia has also been highlighted recently in a national NGO report to the United Nations Committee on the Rights of the Child. The Children’s Report, published by UNICEF in November 2018, draws significant attention to Australia’s serious violations of the rights of children held in detention.

Despite the repeated exposure of significant concerns about children in the justice system, little has changed and recent reports record the rising numbers of children nationally placed on remand in prison, rather than as ‘a last resort’ and children diverted away from the criminal justice system. 

Dylan Voller Defamation case

In order to precipitate change, Dylan Voller, now 22 years old, has actively spoken out in the mainstream media about his experience and the experiences of other children in Don Dale. This public visibility, along with existing dominant popular punitive attitudes that exist, lead to him becoming the target of bullying and false commentary online. This commentary has included defamatory, unfounded accusations that he had attacked a Salvation Army officer who visited him while in detention.

In addressing this, Dylan Voller’s legal representatives launched legal proceedings, suing three media organisations for defamation: Sydney Morning Herald, The Australian, the Centralian Advocate, Sky News Australia, and The Bolt Report, relating to comments made by members of the public on the media organisations’ public Facebook platforms.

This is an interesting and highly unusual case in that the legal action has focused on the role of the hosts of the comments, rather than the individuals who posted the comments. In a landmark decision handed down on 24 June 2019, the Supreme Court of New South Wales held that in relation to defamation liability, media companies are the publishers of comments posted by members of the public on their public Facebook pages.

Significantly, this judgment has implications for businesses that allow users to post comments on their public Facebook pages and potentially other forums/ platforms. Justice Rothman’s decision highlights the need for organisations to review the use of community rules and how they monitor comments created by third parties. 

Victims of Digital Defamation in Australia

In the context of the UK and Ireland, I have written about the impact of such commentary by members of the public on ‘Letters to the Editor’ sections, ‘text message’ sections and comments posted underneath online media news items. My research has produced an evidence-base of the experiences of children who have been the targets of such online harm, and have in some instances become the targets of bullying, exclusion and victims of physical violence, as a result. As advocates, we all have a responsibility to highlight the impact on individuals and social groups that are affected.

There has been previous research on digital defamation in Australia. The Centre for Media Transition, the University of Technology Sydney conducted extensive research, which reviewed five years of defamation cases in Australia (2013 – 2017). The findings were published in a report in 2018 and they shine a light on one area of contemporary concern for journalism in an era of digital publishing, news aggregation and social media.

What case analyses and research studies have not yet explored is the impact of digital defamation on particular social groups, such as those who are ‘vulnerable’ and/or have been engaged in the criminal justice system. Over the past decade, the 170 children and young people who engaged in my research studies overwhelming confirmed that they would not know how to make a complaint about mainstream media reporting or social media sharing of their information and details. The office of the e-safety Commissioner in Australia could play a significant role in developing education programmes for children on complaints mechanisms, particularly those who come into conflict with the law.

Need for Reform in the Digital Age

Like many other aspects of technological advancement, the law clearly lags behind the growth in relation to social media platforms and their usage by mainstream media outlets and their readership. Dylan Voller’s case has clearly demonstrated that for legal decision-makers, it is challenging to apply the current defamation laws in Australia to new technologies, such as the usage of social media platforms in the digital age.

While it is likely that the judgment in the Dylan Voller case will be appealed by the media outlets, the case does shine a direct light on the need for significant reform. I would argue, there is an evident need to ensure that vulnerable individuals and social groups are not targeted or further harmed by the online media commentary and in some cases the provocation of such commentary by mainstream media reports.

While freedom of the press and free speech rights are at the heart of a healthy democratic society, as my research over the past decade has demonstrated, we do need to effectively monitor and balance these rights with the privacy rights and international children’s rights instruments, such as the UN Convention on the Rights of the Child (1989). This has become ever the more important in the digital age, where permanency and keeping a track of the spread and reach of imagery and commentary has been altered dramatically.