Defamation and Social Media – Be Careful About Comments

Maarten Vlot

16 Nov 2021

Topics

  • Defamation
  • Dispute Resolution

The High Court of Australia recently ruled that media publishers are liable for defamatory third-party comments posted on their social media pages, because by facilitating and encouraging the comments they assisted in their publication.

This ruling doesn’t just apply to the media. It means that if you or your business administers or hosts a page on social media, you are the publisher – and, as such, could potentially be sued over derogatory comments posted by your followers, readers or clients − regardless of whether or not you are aware of the content of these comments.

What is defamation?

If a person feels that material has been published which harms their reputation, they may have grounds to file a defamation case. This includes written statements, verbal comments and pictures. The person would need to prove that a negative claim was made about them or their behaviour that would cause an ordinary, reasonable person to think less of them.

What happened in the High Court?

The case considered whether media outlets, including The Sydney Morning Herald, The Australian, The Centralian Advocate and Sky News, could be held liable for defamatory comments made on their respective Facebook pages. The comments concerned 17-year-old Dylan Voller, whose mistreatment in the Don Dale Youth Detention Centre sparked a Royal Commission into the Protection and Detention of Children in the Northern Territory. The High Court found that by facilitating and encouraging comments on their Facebook pages, the media outlets had participated in the communication of defamatory material and could be held legally responsible as publishers of these comments.

The ramifications of this decision for the Australian media are enormous, with some outlets turning off the comments feature on their pages altogether.

What about the person who made the defamatory comment?

The individual person who posted the defamatory comment is also legally liable, but they may not be as lucrative a target to the claimant as a big media company.

What does this mean for my organisation?

The court found that media outlets are legally responsible for comments made in response to their posts. While this case only dealt with media organisations, it is quite likely that it will extend to any organisation, group and, possibly, to individuals as well.

What if I just delete comments that are possibly defamatory?

The court said it did not matter if the comments were deleted after the media outlet became aware of them. They were seen to be the publishers of the posts from the outset. The decision has implications for all users of social media platforms, including individuals. It may mean that anyone can be held liable for defamatory comments posted on pages that they moderate. It may even extend to pages affiliated with your organisation, and therefore it will be wise to communicate protocols on how to moderate comments with owners of any page affiliated with your organisation.

What about other social media platforms?

The High Court case only concerned Facebook, but the decision has implications for other social media platforms and even for websites with commenting functions. If your organisation uses other social media platforms or if your website allows comments to be posted, you should also exercise caution when allowing comments on posts.

What will happen in future?

At present, if a person feels that material has been published that harms their reputation, they may have grounds to file a defamation case. This includes written statements, verbal comments and pictures. The person would need to prove that a negative claim was made about them or their behaviour that would cause an ordinary, reasonable person to think less of them.

New defamation laws came into effect on 1 July this year in the ACT, NSW, South Australia, Victoria and Queensland. These laws mean that you can’t just immediately sue someone without informing them in writing first – as did Voller’s legal team. This is called issuing a ‘concerns notice’. It gives the defendant at least two weeks to respond to the allegations before they are sued.

This is not the only change introduced under the new laws. Under the new laws, the onus is now on the person suing to prove ‘that the publication has caused, or is likely to cause, serious harm’ to their reputation; a so-called ‘serious harm threshold.’ This new harm threshold was introduced to reduce the number of trivial claims brought to court, as much of the chatter on social media is not likely to genuinely seriously harm someone’s reputation. It may also help to protect those private individuals who host social media pages.

The federal government has also indicated a desire to make the social media companies themselves responsible for defamatory material on their platforms.

What can I do to keep my organisation out of trouble?

If you want to encourage conversation on your social media pages, and if you have the resources and the knowledge, you can train a staff member as a social media moderator. With the help of moderation guidelines, which are published on the page, the social media moderator can make decisions on what comments should be deleted.

Not every organisation can afford to have a social media moderator on the payroll. The alternative may be to restrict comments on your pages. Social media platforms have now made it possible to restrict comments and replies on public posts. It may also be advisable to restrict other people from putting up posts on your page.

How Can We Help?

The team at Snedden Hall & Gallop can advise on your unique circumstances. Contact them on 02 6285 8000 or by email.