WHEN FACEBOOK IS NO LONGER YOUR BUSINESS’ FRIEND

In June this year, the New South Wales Supreme Court handed down an important judgment of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian New Channel Pty Ltd [2019] NSWSC 766. This case may have significant implications for organisations using public social media pages particularly around their liability for posts made by third parties.

Mr Voller brought proceedings against three media organisations for defamation, alleging that the media organisations were liable for the defamatory comments made by members of the public on news stories or links that were published about Mr Voller on the media organisations’ public Facebook pages. The Court was required to consider whether the defense of innocent dissemination would apply to protect the media organisations (the defendants) from liability. Innocent dissemination is intended to protect people such as newsagents, booksellers, and internet service providers who unwittingly publish defamatory material without any negligence on their part.

Ultimately, the Court found that organisations with public Facebook pages can be the “primary publishers” of the material and therefore liable for the defamatory posts made by the public.

In coming to his decision, Judge Rothman drew a significant distinction between a public Facebook page and the operation of a public website. His Honour reasoned that on a public Facebook page, the administrator has the ability to prevent and vet comments made by others. By way of contrast the administrator of a public website has no capacity to prevent the publication of negative comments by members of the public, but is only able to remove the comments once made. This comparison led His Honour to find that the media organisations were primary publishers of the third party comments on their public Facebook pages, and the defense of innocent dissemination did not apply.

Key Takeaways

This case serves as an important warning to organisations that have public Facebook pages. Owners and administrators of these pages should be warned of their potential liability for the comments posted by the public on these pages. In light of the above decision, public Facebook page users should note the following:

  1. Courts are more likely to hold owners of social media accounts liable for the posts made by third parties, particularly so if the owner/administrator has the ability to prevent the publication of defamatory material – such as by pre-approval, comment hiding or vetting processes;
  2. The Court in this case clarified that organisations who utilise public Facebook pages for commercial purposes, assume the risks that certain comments may render them liable;
  3. If you have a public Facebook page to promote your business, consider:
    • hiding comments made by members of the public until you have pre-approved or checked them;
    • utilising the Facebook list of banned words, which will hide or delete public comments which contain such words; and
    • blocking users who may make unacceptable, threatening or defamatory comments.

If you have any questions or would like to discuss please feel free to get in touch with our Business team at BAL Lawyers.

Written by Lauren Babic and Maxine Viertmann.