Last week’s NSW Supreme Court decision expanded defamation laws in a troubling direction for businesses on social media, spelling the potential need for close monitoring of third party activity on commercial social media accounts.
The Supreme Court case was brought by the former young Don Dale detainee, Dylan Voller, who was at the centre of the 2016 scandal that sparked a royal commission. Mr Voller sued three media companies when the articles they posted about him on Facebook received a string of defamatory comments, by third parties. The novel question before the court was whether businesses that host a public Facebook page can be held responsible for comments posted on their page, by other users. The NSW Supreme Court held that they could.
The court’s reasoning
The court’s reasoning was that the media companies had facilitated the speech of others by posting on a forum that invites commentary from a large audience. While the media companies were, therefore, not the ‘originators’ of the comments, the fact that their public Facebook page allowed the public to access third party defamatory activity was the defining factor that made them the ‘publisher’, in the eyes of the law.
The consequences of the Voller case
The consequences of this case are that now, when a business publishes an article, advertisement or other post onto their public social media accounts, they are responsible for the third party activity on that post. This includes all the comments made by social media ‘trolls’ – who aim to get a reaction out of other users, with their purposefully inflammatory and often defamatory comments. Given the notorious nature of the comments section on social media, this case has caused alarm for many businesses, who use social media as a way of engaging with the fast consumer world.
Was the court’s finding left-field?
However, the decision was not totally left field. The Voller decision merely follows the trend set in an earlier 2011 Federal Court decision. That case was brought by the Australian Competition and Consumer Commission (ACCC) against the company Allergy Pathway, for posting misleading content on their social media. The misleading content included third party testimonials posted on Allergy’s Facebook wall.
The court in that case was faced with the similar question of whether the owner of a public Facebook page is responsible for misleading content posted on their page by a third party. Again, the court answered in the affirmative. The Federal Court found that Allergy had assumed responsibility for the posts after they’d become aware of them and failed to take them down. The Court placed great weight on the fact that public Facebook pages have the ability to set up an approval barrier before material posted by third parties can be viewed, therefore effectively giving them control of what is published.
Constant monitoring of social media accounts required
These two cases show a clear direction by the Australian courts to find administrators of public social media pages responsible for all third party content. The necessary conclusion of course is that businesses are now expected to be constantly monitoring their social media accounts for defamatory or misleading material, or risk being liable.
There aren’t many options available for businesses to continue using social media, without constant moderating. The Federal Court is correct that public Facebook pages can be configured, so that each third party post is approved before being accessible, and of course comments can be turned off. However, this significantly restricts access and somewhat defeats the purpose of engaging consumers, via social media.
Potential disclaiming of responsibility
Businesses could consider including a set of terms and conditions on their public social media accounts to state that they do not assume responsibility for third party content. It’s a pretty simple solution and could help to set clear guidelines for what conduct is allowed (and prohibited) from other users. It’s unclear, however, whether they would still apply in instances of clearly defamatory conduct that is not removed within a reasonable time.
Perhaps the biggest benefit of displaying terms and conditions on social media is to seek a grace period for removing third party material. This, at least potentially, provides businesses with some peace of mind when it comes to their obligations to constantly monitor their social media accounts, while still encouraging engagement from consumers.
Ultimately, while businesses have some cause for concern following the Voller decision, taking a pro-active approach against third party conduct is the most responsible decision. The Australian courts have now set a clear path for the allocation of responsibilities and it is now up to businesses to protect against the conduct of their consumers.