INSIGHT

Defamation in the digital age – beware of social media comments

By Julia Taylor
Intellectual Property Media, Advertising & Marketing Patents & Trade Marks Risk & Compliance

In brief 4 min read

The NSW Court of Appeal has recently reaffirmed the ruling that administrators of public Facebook pages can be held liable as publishers of comments posted to their pages by members of the public. Businesses should be vigilant, and implement processes for monitoring and moderating comments on their social media.

Key takeaways

  • Increased monitoring of social media postings will undoubtedly increase compliance costs for businesses, but this cost must be weighed against the risk of liability for defamation.
  • Though the Court of Appeal confirmed that page administrators are 'publishers' of users' comments, it held that the finding they are 'primary publishers' of those comments went beyond the scope of the question asked of the court. This means that a defence of innocent dissemination may still be available to page administrators.
  • It also remains to be seen whether the provisions of the Broadcasting Services Act 1992 (Cth) affect the liability of media companies in Australia that operate public social media pages for defamation arising from third party posts to their pages.

Who in your organisation needs to know about this?

Marketing and social media engagement teams should be aware of this development, as well as legal, risk and compliance teams.

Publishers of Facebook comments

Who is a 'publisher'

We previously reported on the NSW Supreme Court's ruling that administrators of public Facebook pages could be found liable as primary publishers of defamatory comments that third parties post on their pages. This ruling was appealed by Fairfax, Nationwide News and Australian News Channel to the NSW Court of Appeal. In June, the Court of Appeal confirmed that the applicants, which encouraged and facilitated the making of comments by third parties on their Facebook pages, which were then visible to Facebook users generally, are publishers of the comments. They, as administrators of public Facebook pages, provided the means for publication of the comments to the public. This was because they 'facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory'.

Defences to liability

It seems clear now that companies operating a public Facebook, or similar social media, page will be responsible for publishing everything that is posted on the page. However, the Court of Appeal took a step back from the position the primary judge articulated, noting that there is a 'distinction between responsibility for publication and liability for the communication of the defamatory content of the publication'. The separate question posed for the primary judge did not require a characterisation of the media organisations as primary or subordinate publishers. Having determined that they were responsible for the publication of the comments, there was no need to take the matter further. The Court of Appeal has therefore left it open for the media organisations to rely on the defence of innocent dissemination. That is, although they published the defamatory comments, the media organisations can argue that they should not be held liable because they acted in the capacity of a 'subordinate distributor' of the material and did not know (without any negligence on their part) that the material was defamatory.

Three unrelated media companies – Bauer Media, Dailymail.com Australia and Seven West Media – sought to intervene in the appeal, and raised an issue the parties had not argued. This was whether the claim in defamation was subject to the Broadcasting Services Act 1992 (Cth), which provides that a state or Territory law has no effect if it subjects an internet content host to liability for hosting particular internet content where they are unaware of the nature of that content, or it requires them to monitor hosted internet content. As the parties did not raise the issue, it could not be determined on the appeal. However, the Court of Appeal noted that an Australian company that operates a website or page on a platform on which it is able to control the content it makes available to internet users is properly described as 'an internet content host'. Therefore, it will be important to determine whether the company is aware of the nature of the particular content in order to conclude whether liability under state defamation laws can arise. It will be interesting to see whether the issue is raised in the defences to be filed by the media organisations.

At the time of publication, the media organisations had not filed an application for special leave to appeal this decision to the High Court, but may do so.

Actions you can take now

  • Consider the tools that social media platforms make available for hiding or moderating comments on posts or content uploaded to public pages.
  • Make sure that you monitor comments third parties post to your company social media pages.
  • Implement processes for promptly removing comments, or other content, from your company social media pages where they breach the platform rules or contain potentially defamatory material.