When you write something about a person or business online, or even post inappropriate comments, if you don't choose your words wisely, you risk being sued for defamation. But if someone else writes something on your own social media page, can you be held liable for it, even though you didn't write it?
A recent decision by the Supreme Court of New South Wales, upheld by the NSW Court of Appeal, has determined that administrators of Facebook pages may be considered the 'publishers' of posts by others, and may therefore be liable for defamatory comments.
A young man, Dylan Voller, brought a civil case against Fairfax Media, Nationwide News and Sky News over comments posted in reply to articles placed on the social media platform between July 2016 and June 2017. The posts were made on the Facebook pages of the The Sydney Morning Herald, The Australian, Sky News, The Bolt Report and The Centralian Advocate.
Mr Voller is a former detainee of the Don Dale Youth Detention Centre. His mistreatment at the facility sparked a royal commission of inquiry.
In his statement of claim he said the defendants should have known there was a "significant risk of defamatory observations" after placing the articles online.
He said the organisations could have chosen to monitor or hide the comments.
The court is yet to rule on whether the material contained in the comments was defamatory. Nevertheless, the ruling is clear – the media companies were publishers of the comments and therefore liable for them.
In its judgment, the NSW Court of Appeal Justices John Basten, Anthony Meagher and Carolyn Simpson said the organisations "accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments".
What does this mean for you?
It's a significant judgment that could have wider implications, not just for the tech giants like Google and Facebook who face defamation suits on a regular basis, but also for ordinary Australians who have their own social media accounts, and allow others to write on their pages, or add comments to content. The ruling means personal account holders are considered 'publishers', and can be held responsible for defamation in Australia.
Defamation suits over material posted on social media are becoming increasingly common, but these have traditionally targeted the original author of comments, not the account holder or 'page' owner.
In the same way that building owners have been sued over defamatory graffiti (because they failed to remove it), or a newspaper can be sued over comments in a Letter to the Editor, even though the newspaper didn't author the letter, but merely published it, there are potential implications for anyone who has a social media account.
There is potential for the ruling to pave way for a string of law suits, and of course, there is also the issue that you can create a Facebook account for example, at the age of 13. Many account holders wouldn't know what constitutes 'defamatory material' is yet could be held accountable for it.
Defamation Law in New South Wales
In New South Wales there are two types of defamation.
Under the Defamation Act there are three distinct components which need to be proved on the balance of probabilities in order for defamation to be established:
- Publication – Material must be published (which includes orally communicated) to at least one person other than the party who was allegedly defamed.
- The publication can occur orally or in writing, whether in print, by way of digital communication or otherwise, but it must be comprehensible.
The material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so.
The material must be 'defamatory' to the 'ordinary, reasonable' person, which means it must be likely to:
- cause the person to be shunned, shamed or avoided by others;
- adversely affect the reputation of the person in the minds of right-thinking members of society; or
- damage to the person's professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in his or her trade, business or profession.
The law also sets out that a limitation period of one year to take civil action over defamation, however there is a provision within the law which allows a court to extend that period to up to 3 years from the date of publication, 'if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication'.
Parties that cannot be defamed
Under section 9 of the Defamation Act, companies with 10 or more employees or which are formed for something other than financial gain cannot sue for defamation.
Section 10 precludes anyone from asserting, continuing or enforcing a cause of action for defamation in respect of a deceased person, or from suing the estate of a deceased person.
Offers to make amends
The Act also sets out a range of rules for resolving civil defamation disputes without litigation.
The part provides mechanisms for offering to make amends without resorting to legal proceedings, and makes clear that any such offers, or admissions made therein, are not admissible in any ensuing litigation.
Section 529 of the Crimes Act 1900 (NSW) sets out the offence of 'criminal defamation'.
Section 529(3) prescribes a maximum penalty of 3 years' imprisonment for anyone who, without lawful excuse, publishes a matter defamatory of another living person:
(a) knowing the matter to be false, and
(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused
Section 529(4) provides that a defendant has a lawful excuse lawful excuse if, and only if, he or she would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation.
Section 529(5) makes clear that the prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant.
Section 529(7) requires the consent of the DPP before proceedings can be instituted under the section, and subsection (9) states that a prosecution under the section does not a bar civil defamation proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.