Whether you own your own business or work in one – it’s likely your company is on social media for marketing purposes.
Seems innocent enough – but even the most well intentioned, innocent post by a business can become a platform for abuse and the derision of others.
Can a business, on whose original post someone makes a defamatory remark, be held to be a publisher of those comments, even if the business was unaware of the comment? The answer might surprise you.
Congratulations, you’re a publisher!
“But I’m a restaurant owner”, you say. “I just run child care centres”, you insist. “I’m an accountant and all I do is post boring accounting memes at tax time” you sheepishly admit. Don’t be ashamed, we’re not prolific users ourselves.
It doesn’t matter what business you’re in. If you have a social media profile, that allows people to comment – and they do so in a defamatory way – according to the law, you are a publisher of those comments. It doesn’t matter that you didn’t write them. It doesn’t even matter if you knew the comments were there. According to the law, you are considered the publisher and therefore, can be sued for defamation.
How did I become a publisher?
You can thank Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27. Not the catchiest of names – so we’ll call it Voller.
In 2016, the ABC Four Corners programme aired a report into the Northern Territory’s juvenile detention system. That story included the experiences of Mr Voller, who was a detainee. The Four Corners programme generated significant public attention and ultimately led to a Royal Commission in the Northern Territory.
Many news outlets shared Mr Voller’s story on their Facebook pages and it was there that Mr Voller was subjected to numerous negative comments by third parties who commented on the original Facebook posts. Mr Voller subsequently sued the media outlets for defamation and a critical question that arose was whether they could be deemed to be a “publisher” of the material posted by third parties.
In a nutshell, the majority decision in Voller held that any business or person who permits a post to be open to third parties to comment on may be liable as a publisher if a third party does in fact use that original post to make defamatory statements. It does not matter whether the defamatory comments relate to the post or not. If the post/platform permits the making of the comment, then that business will likely be deemed to be a publisher of the comment in addition to the person making it.
In rejecting the media companies’ submission in Voller that they were mere innocent parties and not publishers of the comments, the High Court said:
“In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.”
The High Court rejected the submission that the publication of defamatory material must be intentional and found that the media outlets’ liability as a publisher did not depend on them having knowledge of the defamatory statements or on their intention to communicate those statements.
Now that the law considers you to be a publisher, if you’re sued for defamation, it’s up to you and your commercial litigation lawyer to prove you’re not liable for them.
Here’s how you could be liable
If your business was told that a comment on your page is defamatory, and your business failed to take reasonable steps to remove or deal with that comment, your business will be liable as a publisher.
Whilst the Voller decision has provided certainty on the issue of who is a publisher in these circumstances, it’s still not clear as to how this decision affects the defence of innocent dissemination.
The defence of innocent dissemination is available where a person facilitates the publication of defamatory material created by someone else but where they did not know that the defamatory comments were there. On the basis of Voller, a business can be found to be a publisher of material even if it does not know that the material was placed on its post but may be able to defend liability for the defamatory material based on that same lack of knowledge. This is an inconsistent position, and one that needs attention and legislative reform.
In lieu of that reform, courts have started stepping in to fill the void including by ordering social media and tech companies such as Google to remove reviews, disclose the details of anonymous posters and in one instance, finding Google liable for defamatory content that was present in links to articles not published by Google, bit which Google had refused to remove after being made aware of the content.
Businesses Beware
The Voller decision does not just apply to big media companies. The implication of the decision is that any business or person who facilitates the making of a defamatory comment by a third party may be liable as a publisher for defamatory comments made by that third party.
Whilst large, well resourced businesses may be able to employ moderators on a full time basis to review and vet the comments on their posts, the reality is most small and medium businesses simply do not have the time or resources to do this.
So, what practical steps can your small business take to mitigate the risks?
How to mitigate the risk of defamation claims
Even if the defence of innocent dissemination is available against liability, the cost of defending a defamation action can be very high. Defamation is a notoriously expensive area of the law. Your safest bet is to reduce the risk of defamatory content on your social profiles by employing the following tactics:
- Where possible maintain your own websites and social media posts. Don’t leave the responsibility up to third parties;
- If you do use a social or digital marketing agency, ensure you agree on the processes, roles and responsibilities of moderating content and put these in your service agreements.
- Monitor your social media and internet posts as often as possible for any “trolling” third party comments and remove those comments as soon as you become aware of them. The quicker you find and remove them, the more you mitigate the risk of defamatory material.
- Marketers won’t like this – but it’s certainly a good option if you don’t have the time or resources to monitor your social media profiles systematically. You can utilise pre-emptive measures such as disabling comments on posts, which is a feature now available on Facebook.
- Act immediately if you receive a complaint about comments made on your post and remove anything that is offensive or defamatory of another person.
If all else fails, and you find yourself in a situation where you’re accused of publishing defamatory content, speak to one of our commercial litigation lawyers as soon as possible. You can contact us here.
Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.
