If you own a business and publish content on social media, it is important that you understand the risks regarding defamation. Additionally, you should be aware of your obligations to prevent defamatory comments from being published on your social media pages.
A high-profile court case, the Voller decision, found that some of Australia's biggest media outlets were the publishers of third party comments on their Facebook posts. This decision has wide-reaching impacts. It could mean that any business or person who operates a Facebook page, or something similar, could be held liable for defamatory comments made on their posts or page.
This article will briefly explain defamation and what the Voller decision means for any business that operates a social media page.
What is Defamation?
Defamation is mainly concerned with the protection of reputation. It involves any communication from one person to another person (or multiple people), which harms the reputation of a third person. Defamation laws aim to balance the right of free speech with the protection of a person's reputation against harm. Therefore, to achieve that balance, there are a number of defences that individuals or businesses may rely on. These defences against a defamation claim may be available even where the publication is considered defamatory.
The news media tends to be a main target for defamation actions. However, people have also sued over:
- Google reviews;
- Facebook comments;
- photographs; and
- phone or video calls.
All Australian states and territories have largely uniform defamation laws. In July 2021, defamation laws underwent reform in some states, including Queensland, Victoria and South Australia, with other states and territories to follow.
Elements of Defamation
The key elements of a defamation claim are that the:
- communication has been published or communicated to a third party (i.e. not a direct message to a person but a public comment);
- communication clearly identifies or is about the person being defamed;
- meaning of the communication is defamatory or harms the reputation of the person; and
- meaning of the defamatory communication has caused or is likely to cause serious harm to the reputation of the person.
Only individuals and businesses with less than 10 employees are capable of being defamed. Importantly, if a person or business has a claim in defamation, they must commence legal proceedings within 12 months of the publication being published
If a publication is defamatory, it is presumed that the person who is the subject of the defamatory publication has suffered damage, without actual proof of loss or injury. A publication is defamatory of a person if it tends to injure their reputation either by:
- disparaging the person;
- causing others to shun or avoid the person; or
- subjecting them to hatred, ridicule or contempt.
The Voller Decision
In the Voller decision, the High Court confirmed that parties who create a Facebook page might be responsible for defamatory comments that third parties post to that page, as if they themselves were the publisher of the comments. This particular decision involved Facebook and media organisations. However, it has broader implications for all social media and online platforms that facilitate comments from third parties.
In 2016, a 'Four Corners' episode featuring Dylan Voller, aired on the ABC, regarding the juvenile justice system. Following this, Fairfax Media (The Sydney Morning Herald), Nationwide News (The Australian), and Australian News Channel (Sky News) all published stories that featured Dylan Voller. Each news organisation had a public-facing Facebook page where they published content relating to the stories they had published. The posts usually involved:
- the posting of a hyperlink to the news story;
- an image; and
- a comment.
Third party Facebook users posted comments on the Facebook pages of the news organisations. Dylan Voller alleges these were defamatory of him. Importantly, at the relevant time, Facebook did not allow page owners to disable comments on their posts. However, all of the allegedly defamatory comments were deleted.
Dylan Voller commenced an action against the news organisations rather than the individuals who posted the defamatory comments.
Ultimately, the High Court decided that the news organisations were the publishers of the third party Facebook comments.
What are the Implications of the Voller Decision?
Previously, where someone made a comment on a Facebook post (for example), it was clear that the person making the post could be held responsible as the publisher of defamatory content.
However, due to the Voller decision, a business or company that publishes the posts on their social media page or website can also be held responsible for defamatory comments made on the post, whether they are aware of the relevant defamatory matter or not.
In the eyes of the court, they are a 'publisher' of the defamatory content as well. They have this status even though they are not necessarily the author.
How Should You Deal With Potentially Defamatory Online Posts on Your Social Media Pages?
Following the Voller decision, it is important to be aware that you are responsible for the comments third parties make on your social media posts. In the Voller decision, the comments were made about the subject of the articles that were posted. However, it is less clear as to whether a similar decision could be made if people in your comments section made defamatory comments about each other that had no relation to your post.
At this stage, high-risk social media posts are those which could be controversial or where a person is identified as the subject of the post. Below we outline some things you should consider in light of the Voller decision.
1. Consider Whether the Social Media Post is High-Risk and Likely to Invite Defamatory Comments
In particular, if the post is about a specific person or if you know the post may invite controversial comments, you should consider these high-risk social media posts. You should monitor the high-risk posts more closely. Preferably, you should do so with settings that allow you to approve the comments before they are published. We would also suggest using filter features available on platforms such as Facebook. These features allow you to hide comments containing certain words.
2. Pre-Review Comments Before They Are Posted or Review Comments on Posts Regularly
Even if you are not aware of a defamatory comment, you can be considered liable for it. For this reason, it is important to put in place some preventative measures. For example, you should ensure that you have someone monitoring comments on all of your social media posts.
Additionally, if a platform allows you to monitor comments or screen them before posting them, we suggest that you use this feature on any high-risk posts.
3. If You Find a Potentially Defamatory Post, Hide or Delete the Post or Comment
If you are unsure about whether the post is defamatory, err on the side of caution. Therefore, you should remove any posts containing insults or derogatory statements directed at another person or business that would clearly damage that person's or business' reputation.
Defamation is an extremely complex area of law and can be very costly to defend. Therefore, you should take steps to prevent a defamation claim from being brought against you. Additionally, you are now responsible for the comments that third parties make. Therefore, it is important to monitor your social media and company website pages closely and remove potentially defamatory content quickly.