You can now defame people via social media, without saying anything

by bqmedia

Andrew Nicholson from Mullins Lawyers can be contacted for guidance or advice on 07 3224 0353.

Organisations should be critically reviewing their social media strategies following the High Court judgement in Fairfax Media Publications v Voller.

While the case involved some of Australia’s largest media organisations, the decision will impact anyone who is maintaining a social media page/s, including existing brands, businesses of all sizes, schools and associations or committees, charities and even local clubs.

That is because the court effectively opened the way for those who are targeted by keyboard warriors to bypass having to bring a complaint against trolls and claim directly against the owner of the social media page where those comments have been posted about them by others.

That is likely to result in further claims being brought as complainants are likely to see organisations as having greater capacity to pay than trolls, or individuals who post disparaging or defamatory comments to a page.

The question in Voller’s case was whether the media outlets (which were in the same position as anyone owning a social media page) had published the comments by allowing (or encouraging) others to post material to the outlet’s social media accounts – specifically Facebook.

The Court found that each of the media outlets published material in relation to Mr Voller by allowing others to access and post content on their Facebook page/s, leaving them exposed to a claim for defamation.

Relevantly, that question was considered in light of each of the media outlets having monitored their social media page/s and having deleted some comments (including the allegedly defamatory comments) after they were posted. Having removed these comments, the media outlets argued that they should not otherwise be liable.

Liability for defamation applies to comments which lower standing/ reputation when they are published to third parties. Until the comments are published there can be no defamation. The media outlets argued that they were passive or ‘innocent disseminators’ of information and that any comments posted to social media were the responsibility of the author. However, they acknowledged that the law recognises claims against publishers who decline to remove content once it is brought to their attention.

The Court found that the media outlets had facilitated and encouraged the posting of comments by third party users on pages which they controlled. It was those actions that put them in the position of publishers of the posted comments.

The case confirms that publishers (including anyone who owns a social media page) can be liable for defamatory comments even where they are unaware of the nature of the comments and are ‘publishers without notice’.

For those who own social media pages, the Court has extended those principles to refrain from providing others with a forum to say things that are not nice. The alternative is to take the risk of running social media accounts and to hope that others don’t post material that will get you into trouble.

All organisations should:

  1. review their social media strategies (and pages); and
  2. ensure that appropriate terms of use of their website (and social media) are posted to those pages seen and accepted by users.

Terms of use can be tailored to set the rules of posting comment and provide the host with some protection.

Organisations should also review access restrictions and implement monitoring of content. It is notable that Facebook has altered some of its settings since the commencement of the case.

Hosts will need to pay close attention to their settings and any changes which are made in the future.