China has yet again cemented its reputation as the great 21st-century innovator by coming up with a novel new way of convincing its citizens to honour their legal and community responsibilities. In the interests of encouraging wayward debtors to pay their dues, Chinese Authorities have devised a none-too-subtle system of naming and shaming them by projecting their names and faces onto movie screens across the country, including recently during the previews to the worldwide smash hit movie Avengers: Endgame. A little heavy-handed perhaps, but no doubt very effective. As one who is regularly tasked with pursuing delinquent debtors through the court system, I can attest that often the greatest impetus to defaulters to do the right thing seems to be the prospect of being snapped by the local paparazzi as they walk in and out of court. After all, in the modern day world of the internet and social media, where yesterday’s front page is no longer today’s fish and chip wrapper, bad publicity, like plutonium, is forever.

Interestingly enough, in recent times a number of online media outlets here in Australia have taken to posting similar “name and shame” content. Some months back, one major Queensland newspaper took to posting what is now a regular hit on its Facebook page, featuring an effective rogues’ gallery of unfortunates taking the walk of shame to the local Court house. The practice has no doubt achieved the desired outcome of informing the newspaper’s readership, generating clicks and fostering energetic online discussion. So much so, in fact, that a number of other Queensland news outlets have taken a leaf from the same book, and are circulating similar content on their social media pages.

However, whilst the idea may have some value, commercially and otherwise, it may also carry some risk.

Earlier this year, the Supreme Court of NSW handed down its decision on a defamation case brought by Dylan Voller, a former Don Dale Youth Detention Centre detainee, against The Sydney Morning Herald, The Australian, Sky News, The Centralian Advocate, and The Bolt Report, after news articles written about Mr Voller by those various outlets were subsequently published on their respective social media pages to encourage public discourse. As we have unfortunately come to expect from the standard of discourse online, many of the readers left highly defamatory comments under the articles. Justice Rothman ruled that, despite the fact that the defendant news outlets did not write the defamatory comments, they were still considered the publishers, and were therefore liable for their defamatory content.

The effect of that judgment is that media outlets (and other businesses) that feature comment on news or opinion pieces appearing on their social media pages will need to closely monitor their platforms to ensure that they are not vicariously exposed to liability by contributors making defamatory comments.

It’s a highly interesting development, and one that could change forever the once rough-and-ready rules of the public Shame Game.

Brendan Nyst, Director, Defamation Lawyer