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

Organisations should be critically reviewing their social media strategies following the High Court judgement in Fairfax Media Publications v Voller, which many have referred to as a landmark decision, handed down last week.

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 footy 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 (although they remain in the firing line) 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. In addition, if there are multiple contributors to a page, a complainant may now only need to claim against the owner of the page rather than separately against each individual who posts to it.

The question in Voller's case was whether the media outlets (which were in the same position as anyone hosting 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.

In short, 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 legal position isn't quite that simple and 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 [facilitating and encouraging posting] that put them in the position of publishers of the posted comments. While two of the seven Judges who heard the case considered that there should be some connection between the content and the post, the majority found that the hosts were wholly liable merely by virtue of encouraging content to be posted. Those in the minority thought that liability should only attach where the comments were related to the content of the story, and that material/comments posted to (for example) an article about the weather, would not have the necessary connection.

The case confirms that publishers (including anyone who owns or hosts 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'.

We know that many people still view the internet as the Wild West where anything goes and where the well-established rules which we otherwise abide by day to day cease to apply. Social Media is also often regarded as a place to freely express views, vent, post what passes for entertainment and even exchange photos or videos that you may not want your grandmother to see. However, the law still applies in cyberspace, including in relation to defamation.

My grandmother never owned a smartphone. Nor did she have any social media accounts. However, she may have had some sage (legal) advice for people who participate in those mediums – that is, to adopt her philosophy that if you can't say anything nice perhaps you shouldn't say anything at all. Unfortunately, that ethos seems to have gone out of fashion.

For those who own or host 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 hot water.

The decision is also far more likely to be relevant to organisations in the current environment. Since the onset of the pandemic, many organisations have focussed their attention to online sales/transactions/promotion, including through the use of advertising through social media and influencers. That rapid shift will now have to be assessed in line with a rigorous governance framework.

All organisations should be reviewing their social media strategy, pages and framework. That may include reviewing rules of access to or participation on the social media page and/or refining the settings which are used in relation to those forums. It is notable that Facebook, in particular, 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.

Article written by Andrew Nicholson (Partner) 

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."