You could be liable when people “Have Their Say”

A recent court decision has opened the door for your business to be held responsible for defamatory posts and comments made by others on your businesses Facebook pages.

In summary, the law of defamation in Victoria means that a person who publishes a defamatory statement can be responsible for defamation.

Normally a business that has a defamatory comment made on its social media page by another person would say that it should not be responsible because it did not make the comment and did not participate in making the comment – a distinction of providing the platform rather than publishing.

However, this case sought to challenge that and make businesses responsible where they provide a space for others to make defamatory comments.

The matter involved a comment made on a Fairfax news outlet Facebook page. As you would see in your own Facebook page, anyone is able to make a comment on a news story. In this case, the comment was made by another person, not Fairfax. Fairfax removed the comment when it was made aware that it was false and defamatory. However, the person at the centre of the comments took legal action against the news outlets for defamation.

Unsurprisingly, Fairfax defended the case by arguing that they did not make the defamatory comments, they did not participate in making the comments and they should not be responsible for them.

The New South Wales court held that Fairfax did publish the comments because it had facilitated the ability to make the comment and had ultimate control over it.

The case has been appealed but even pending an appeal it provides some timely reminders for the owners or administrators of any social media page on which comments can be made – that is a court may take the same approach in the future for comments made not just on a newspaper comments page but the page for an organisation or group or dare I say a community “Have Your Say” page.

To minimise risk you should:

• make sure you never post any defamatory comments
• ensure your page has clear user terms that discourage inappropriate comment
• actively administer your social media pages to remove offensive comments or posts
• make any comments subject to approval or moderated by social media page moderators before they become public
• consider removing the ability to make comments on some posts particularly those that may involve a higher level of risk or contain potentially inflammatory content
• block, report users and remove posts users from users who make unsavoury comments
• set up alerts for comments and review these throughout each day and not wait too long before removing any offensive comments

OFRM's business lawyers can assist you with setting up policies and processes to manage the risk of the legalities of your social media accounts. Contact Lachlan Edwards on 0427 916 442 or Siobhan Liston on 03 5445 1067.