Have you ever had a potentially defamatory comment made on your business’s social media page?

How did you respond? Did you even know the comment had been made?

Perhaps you deleted or hid the comment immediately, or allowed it to remain in the interests of “free speech” or to increase interest in the post?

A recent decision of the Supreme Court of New South Wales calls for increased vigilance in managing public social media pages. The Court determined that administrators of a public Facebook page can be liable as “publishers” of defamatory comments made by a third party, even if the administrators are unaware of the comments.

The facts

The case concerned public Facebook pages of certain news media outlets. Posts containing snippets of news articles and links to those articles were posted on their public Facebook pages. Certain comments made on the posts by third parties were said to be defamatory. The issue for determination was whether the media outlets had “published” the comments made by the third parties, and therefore could be held liable for defamation as if they had made the comments themselves.

Relevant factors

The Court took a number of factors into account in determining that the news media outlets were “publishers” of the third party comments. These included:

• The news media outlets were in the business of distributing material to the public;
• The evidence revealed it was important to the administrators that comments were allowed and in fact encouraged on their public Facebook pages so as to increase interest and therefore advertising revenue;
• The administrators were able to hide comments until approved by them (albeit the tools that would enable them to do so were not used, and to use them would have required additional staff resources);
• The nature of the Facebook posts were such that they were likely to provoke potentially defamatory comments;
• As businesses choose to operate a public Facebook page for commercial benefit, they assume the risk that they will be liable for comments made on the page by third parties; and
• Generally, comments from third parties on public Facebook pages are solicited, invited and welcome.

Practical tips for your business

Though the decision dealt with public Facebook pages operated by news media outlets, the same result could arise in respect of public Facebook pages operated by other types of businesses.

If your business has a public Facebook page, you should consider taking steps to reduce your legal exposure to defamatory comments posted by third parties.

Steps that may reduce your legal exposure can include:

• Refraining from posting on topics that are likely to provoke defamatory reactions/statements;
• Setting the profanity filter to ‘strong’;
• Adding words to the existing ‘page moderation’ function so comments containing certain words will be automatically hidden;
• Having a clear policy regarding the process for approving comments before they are visible; and
• Blocking users that post potentially defamatory comments.

Application to areas other than defamation

Although the decision only dealt with “publication” in the context of defamation law, it raises the interesting question of whether the administrator of a public Facebook page might be liable under other laws for “publishing” something contained in a comment by a third party.

For example, assume a business publishes a post on its public Facebook page in relation to divorce. A third party then makes a comment on the post to the effect that they had been involved in bitter family law proceedings with their former spouse, who they name and “tag” in the comment.

Under s 121 of the Family Law Act 1975 (Cth), it is an offence for a person to publish or disseminate to the public anything that identifies a party to family law proceedings. By posting a comment that identifies themselves and their former spouse, the third party may have breached s 121. Further, the business may also have breached s 121 as a “publisher” of the comment, based on the reasoning in the case discussed above.

Future Development

Given the potential wide-reaching consequences of this decision, it will be interesting to see if the decision is appealed and whether the general principles are applied to other areas of law that involve the “publication” of information.

Conclusion

Hillhouse Legal Partners can provide you with tailored advice on your business’s rights and responsibilities when it comes to managing the legal risks of social media.

Link to case: Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766