The High Court of Australia recently determined that media companies are responsible (as ‘publishers’) for their readers’ comments on their Facebook page. In short, this means that media companies may be liable under defamation law for defamatory comments made by random people.
This decision has a potentially wide-ranging impact for other organisations with a Facebook page and site administrators more broadly. The very real risk now is that if a person (whether associated with the organisation or not) makes a defamatory comment (which is not promptly removed), then rather than suing the author/s of the defamatory comments, the defamed person may sue the organisation itself, arguing that it has ‘published’ the comment/s.
In defamation actions, ‘publication’ is an element of liability, but it is not an exact science. It simply depends on communication between at least two people, but it is different from authorship. In other words, you can be a ‘publisher’ where you choose to share something which you did not author yourself. What the recent Court decision has also made clear, is that you can publish defamation by failing to act to remove the defamatory posts/comments in question.
Whilst the law on ‘publication’ can be harsh, Australian defamation law also has an innocent dissemination defence available. In other words, if you can prove that you did not know you had ‘published’ defamation authored by someone else, and your lack of knowledge was reasonable, you will not be liable. However, that is of course a cure and as the cliché goes, prevention is always preferable. To this end, many social media platforms allow account holders to moderate content to various degrees. To illustrate this point, Facebook allows comments containing certain keywords to be automatically hidden. Since March 2021, Facebook has also allowed organisations to turn off comments altogether for some posts.
Finally, if you’ve read this far and concluded that you may need some advice about your situation then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 (by phone or in person). Bookings can be made online through our website (it’s that easy) and as you can probably tell, we like helping people out.