Written by Julia Day

Every business these days is ‘champing at the bit’ to have a wildly successful social media presence. Often a Facebook or Instagram page is created without any thought for how it is going to be fed, nurtured and safeguarded. In a world where content is king and engagement is everything possible legal liability in defamation is not a problem…right????

No doubt when business owners and entities publish posts on their social media pages they do their best to make sure they don’t create or share posts which may be derogatory or defamatory in nature. What is harder to forecast and control though is when a third party makes comments on your social media pages. If someone does place possible defamatory comments on your page/s should the owner of the page or the maker of the comment be liable for an alleged defamatory comment?  

A recent case of the Supreme Court of NSW –Voller v Nationwide News Pty Ltd [2019] NSWSC 766 indicates that the owner of public Facebook pages may be liable for any defamatory comments made on their pages.  

Voller examines whether third party comments on public Facebook pages can constitute a ‘publication’- one of the elements for determining defamation.  Justice Rothman from the NSW Supreme Court held they could. This means that when a third party places a comment on a public Facebook post, the owner of the Facebook page may potentially be liable. It should be noted the Voller case only dealt with the element of ‘publication’ and did not discuss whether or not the comments were actually defamatory.

In terms of establishing ‘publication’ there were three elements which were discussed and relied upon by Justice Rothman. These were control, knowledge and commercial gain. Essentially in the Voller case it was found that the third party comments constituted a ‘publication’ as each of the media outlets had ‘control’ over the comments. In other words the outlets could have avoided the comments being placed on their public Facebook pages by utilising some precautionary practices. Knowledge of the media outlets was also established- ie it was more likely than not the Facebook posts would illicit defamatory comments from their readership.

Each of the media outlets were also using public Facebook pages for their own commercial benefit. They were linking media stories from their social pages in order to increase their readership. The reported analytics then allowed the media companies to negotiate higher rates from their advertisers.

So should business owners shy away from the social media epidemic?? I would argue no- instead owners of public Facebook pages just need to exercise some caution.

Business owners need to keep this judgment in perspective. It is a single judge decision of the NSW Supreme Court. It is subject to appeal and the case only related to the concept of ‘publication’, not whether or not the comments were actually defamatory.  

Still it is significant in terms of providing a warning to businesses and entities about their obligations and responsibilities relating to their public Facebook pages.