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Vying for social media engagement: More risk than reward?
Post by Damian Dinelli | Posted 1 month ago on Thursday, August 15th, 2019

The recent Court decision in Voller v Nationwide News Pty Ltd [2019] NSWSC 766 (the Voller case) highlights a danger inherent in using social media - social media publications invite comments from a wide variety of users, with a very real risk that some of those comments may convey a defamatory meaning. Following the decision in Voller, businesses are at risk of being held liable for defamatory comments posted by third party users who engage with social media content.  

Background

In Voller, the Supreme Court of New South Wales (NSWSC) considered a defamation claim commenced by Dylan Voller, a former detainee at the Don Dale Youth Detention Centre. Mr Voller alleged that Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and Australian News Channel Pty Ltd (the publishers of the Sydney Morning Herald, The Australian and Sky News Australia/The Bolt Report, respectively) (the Defendants) were responsible for defamatory comments posted by third-party Facebook users on stories published by those Defendants to their Facebook pages.

Liability for Defamation and the issue of “Publication” 

Under Australian law, a person is liable for defamation if the material is published to one or more third parties, the material identifies a person and the material conveys a defamatory meaning.

The NSWSC was principally concerned as to whether the Defendants were the "publishers" of third party comments in response to the Defendant's news stories. 

Decision

The NSWSC found that the Defendants were not mere conduits of the Facebook comments, but rather had encouraged Facebook users to make comments in order to further the Defendant's own commercial interests.  The first time each defamatory comment was published in comprehensible form was as a comment attached to each Defendant’s relevant news story.  Given that the publication carrying the defamatory meaning (being the Facebook comment) was viewed by the public in relation to that news publication, it was the Defendants that were the first and primary publishers of the defamatory comment. 

Reason for Decision

In reaching the decision, Justice Rothman took account of the ability of each Defendant’s Facebook administrator to forbid, filter or hide comments, thereby giving the Defendants the power to control the content of the articles and the comments being published.  The Court found that the administrators held the “final right of approval” before comments were made public. That element of control over the publication demonstrated that the Defendants participated in the broadcast of the defamatory material, in failing to exercise their administrative controls and filter the comments appearing under their publications.  His Honour held that by operating their Facebook pages for a commercial purpose, and inviting user participation without exercising the appropriate controls, the Defendants had promoted the defamatory material by ratifying its presence and publication.  For this reason, the defence of innocent dissemination could not apply.

His Honour also attached importance to the fact that the Defendants could delay publication of user comments and monitor whether any were defamatory before releasing them to the general public. This was considered more important than the counter argument that there was a significant time cost in doing so.  

It was considered irrelevant that social media is used to engage third party users and to invite comment and interaction with posts, rather that to simply disseminate information. It was also no defence that it would be difficult to monitor numerous comments being published by third party users over long periods of time (for example, third party users often comment on posts days after the initial post is published).

What does this mean for public publishers on social media? 

This decision highlights for administrators of public social media pages the implications of inviting public comment on their posts.

Media companies and other businesses that utilise social media to promote their commercial interests should pause to consider how they can limit their liability for third party defamatory comments.

Businesses should also consider implementing moderating procedures, such as reviewing comments for factual accuracy or malicious content before the comments are displayed as a comment under the primary publication.

If preventative strategies are to be implemented, the strategies should account for any content posted within the prior 12 months, given the Limitation Act 2005 (WA) permits a person to commence a defamation action within 12 months of publication of the defamatory material.

Reviewing third party comments on existing publications, as well as monitoring, hiding and blocking defamatory comments on future publications, will be necessary for any businesses with a social media presence, at least pending an appeal of the decision in Voller. 

For further information on defamation and managing your risk, please contract Damian Dinelli on 9481 2040 or at damian.dinelli@whlaw.com.au

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