Risk of defamation for businesses with a Facebook page

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In Australia, the concept of free speech, although not enshrined in our Constitution, is a fundamental principle that many individuals seek to exercise. However, this principle is not a licence to make statements that ruin a person’s reputation in the eyes of the community.

The case of Voller v Nationwide News Pty Ltd.; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (Voller) is a recent case that seeks to strike this balance in today’s modern world. The Supreme Court of New South Wales determined that administrators of public Facebook pages of some of Australia’s major media companies bear a duty to exclude any defamatory materials on their page.

Defamation – are Facebook comments ‘published’?

A fundamental element of pursuing a defamation claim is that the statement in question was ‘published.’ In Voller, the Court found that administrators of public Facebook pages have the ‘the final right of approval’ as they have the ability to ‘hide’ and ‘delete’ defamatory comments.   

The Court determined that this unique level of control attributed liability to each page administrator as they were deemed to have published the comment on their Facebook page. The Court concluded that those who comment on public Facebook pages do so intentionally with the knowledge that their comment will be viewed and comprehended by a far wider audience in comparison to the same comment being published on their private Facebook page. 

Therefore, an administrator of a public Facebook page may be liable where a defamatory comment on a public Facebook page is deemed to be ‘published’. This is because after the page administrator reveals the comment, it takes a comprehensible form that is available to a vast audience.

How to protect your organisation from a defamation claim

The case of Voller has far-reaching consequences. Although the Court emphasised the unique framework of a public Facebook page, it is likely that similar public pages on other social media platforms such as Instagram and Twitter may also incur the same obligations.

If you have a public Facebook (or other social media) page there are steps you can take to protect yourself or your organisation against a defamation claim for comments made on that page.   We recommend  that your page administrators:

  • Implement a system to find keywords or phrases that could contribute to a post being considered defamatory e.g. explicit or offensive language;
  • actively manage comments; and
  • have processes in place to ensure that posts are moderated to reduce the risk of defamatory comments.

If you require further assistance or advice please contact us here.

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