- Any organisation that engages with a social media platform assumes the risk that comments made on that platform may result in liability under various laws, including the law of defamation.
- Your organisation can minimise its exposure by implementing policies and procedures to ensure that all comments posted to the organisation’s social media pages are reviewed prior to, or immediately after publication.
- If you have concerns that a comment posted to your organisation’s social media page is defamatory, you should take immediate steps to remove, hide or block the comment and seek legal advice.
Organisations that have embraced the digital age and are active participants on social media platforms are exposed to the risk that their involvement in social media could result in the organisation being liable for the actions of third party users. The recent decision of the NSW Supreme Court in Voller v Nationwide News Pty Ltd raises new concerns for organisations that operate public facebook pages.
This article provides a brief overview of the Court’s reasoning in Voller and proffers a warning for organisations that engage with social media platforms such as facebook.
Liability for defamation
The law of defamation is designed to protect a person’s reputation. Defamation occurs when Party A communicates with Party B and that communication has the effect of damaging Party C’s reputation. Party C will have standing to sue Party A for any loss that Party C has suffered in connection with the degradation of Party C’s reputation.
However, the meteoric rise of social media has led to the increased prevalence of third party liability for defamatory content.
It is well established law that a person who re-publishes defamatory content is liable for that re-publication. As an increasing number of businesses engage with social media platforms such as Facebook, an important question has emerged:
“Are organisations and the administrators of their social media pages responsible for defamatory content posted by third parties?”
The ‘innocent dissemination’ defence
In New South Wales, the common law and the Defamation Act 2005 establish a defence for parties that have re-published defamatory content created by another person. Similar statutory defences operate in the Australian Capital Territory, Northern Territory, Queensland, Victoria, Western Australia, South Australiaand Tasmania.
Generally, the defence will be available if the re-publisher can establish that it was not:
- aware that the original publication actually contained defamatory content;
- aware that the original publication was likely to contain defamatory content; and
- negligent in failing to become aware of the defamatory content.
Although the ‘innocent dissemination’ defence appears to offer protection for re-publishers of defamatory content, the Court’s decision in Voller casts doubt over whether the defence is available in the context of Facebook and other social media platforms.
The decision in Voller
Voller concerned various publically-accessible Facebook pages run by a number of defendant media organisations. The media organisations would use their Facebook pages to share posts including excerpts from videos and news articles, along with hyperlinks to the media organisation’s website. The posts invited third-party users to share their opinion and make comments. A number of third party comments contained defamatory content.
The Court found that the media organisations were liable for the comments and stated at paragraph 224:
“Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purpose, the publication of comments.”
In reaching its decision, the Court looked at the commercial advantage that the media organisations gained by using Facebook, as well as the extent to which the organisations could moderate any content posted by third parties.
The Court also confirmed the position in Thompson v Australian Capital Television Pty Ltd, that a party will be liable for defamatory content originating from a third party where that person has control over, and supervision of, the publication of that defamatory content.
It is essential that organisations are aware of the consequences of the decision in Voller. If your organisation has a public page on facebook, LinkedIn or any other social media platform, you should ensure that adequate steps are taken to protect the organisation from the defamatory conduct of other users.
Further Information and contact details
Pigott Stinson regularly advises clients on defamation and other areas of law touching on social media, including privacy and data security. If you are concerned about comments that have been left on your organisation’s facebook page, or would like more general advice in relation to your legal obligations and social media, please contact us:
- Ray Travers | Partner r.travers@pigott.com.au
- Leonie Kyriacou | Partner l.kyriacou@pigott.com.au
This article is produced by Pigott Stinson. It is intended to provide general information only. The contents of this Newsletter do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this Newsletter. Liability limited by a scheme approved under Professional Standards Legislation.