Defamation by Facebook – Businesses beware

A recent decision of the Supreme Court of New South Wales has confirmed the once uncertain proposition that owners of social media pages may be found liable as publishers of defamatory comments made by online users.

Background

The three proceedings concerned defamation actions brought by Dylan Voller (former Don Dale Youth Detention Centre detainee) against a number of news outlets for alleged defamatory comments made by third-party users on the news outlets’ respective Facebook pages. The broad question was whether each of the Defendants were liable for the defamatory material contained in ‘comments’ made by third-party users. More specifically, the Court was required to determine whether the Defendants should be considered a “publisher” of the comments.
Decision

In considering whether the Defendants were publishers of the defamatory materials, the Court drew its attention to the level of control the Defendants had over the publishing of Facebook comments generally. It was identified that the owners of public Facebook pages have the ability to control (to some extent) the types of comments made on their posts, either through key-word filters or by delay in publishing until page administrators can review the comments. It was decided that, in light of the potential to control the publishing of comments, the Defendants had control over the resulting publication of the comments and were therefore the ultimate ‘publishers’ for the purposes of defamation.

Interestingly, the Court also considered the question of freedom of speech in the realm of defamation. In this regard, Rothman J stated media outlets operate social media pages largely for commercial purposes to optimise readership of that outlet’s content and could not, “escape the likely consequences of its action by turning a blind eye to it.”

Key Takeaways

While the decision only considered the publication element of defamation (as to liability for the resulting damage), businesses with public Facebook pages should be aware that they may face costly defamation litigation if they don’t take steps to appropriately monitor comments by third-party users on their posts.