The High Court of Australia has upheld that a publisher may be liable for defamatory comments made under their social media posts.
The general test for defamatory communication is whether it negatively affects the person’s reputation or lowers the person in the estimation of others.
What is a ‘publisher’?
Media outlets, companies or individuals, including hosts and administrators of online facebook groups, may be considered publishers and are therefore liable for comments made by third-party users on their page.
“The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties.”
Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 at 105.
In addition to hosts of the online community pages, individuals who post defamatory comments will still carry a potential liability for defamation.
What if I didn’t know about the comments?
A publisher may still be liable for defamatory communications on their page, even if they are not aware of them.
A publisher’s liability does not depend on their knowledge or intention to communicate the defamatory material.
Merely by creating a facebook page and posting content to that page companies or individuals may be participating in the communication of defamatory matter.
What can I do to make sure I don’t get sued?
Companies and individuals with a social media presence may consider monitoring comments posted by third parties on their page.
You may take steps to remove potentially defamatory material or manage third parties’ ability to post comments.
Tools to moderate engagement are available on Facebook, these include:
- filters to hide specific words or phrases;
- the option to require approval for posts; and
- the option to turn off comments on a post.
Companies should consider drafting or updating their social media policy to moderate their social media engagement consistently across all platforms to reduce the risk of being sued for defamation.
Summary:
- The High Court has upheld that publishers may be liable for third party comments made on their facebook page.
- Publishers including media outlets, companies and individuals may be liable despite any intention or knowledge of the defamatory matter. Merely by creating a facebook page and allowing comments you may be considered as ‘encouraging and facilitating’ defamatory comments.
- If you have a social media presence you may consider monitoring your engagement and drafting consistent social media policies across all platforms.
If you have any concerns about defamatory comments made under your social media posts or are seeking advice in regards to comments made about you, please feel free to contact a lawyer at OpenLegal.
To get in touch with our team of experts fill in the form on this page or call 1300 337 997.
Ava works in the legal content team at OpenLegal while studying in her fourth year of Bachelor of Laws and Communications (Journalism) at the University of Technology Sydney. Her interests are legal reporting, court reporting and medical law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
