Court ruling has major implications for business

September 21, 2021
Clyde Mooney

A ruling by the High Court has major implications for businesses with social media presence, making them responsible for potentially defamatory comments made by the public.

Social media has revolutionised the ability for public-facing businesses to communicate with current and potential customers, but society itself is becoming increasingly aware of the damage that can be done by its lack of accountability, and sometimes vile and aggressive remarks.

A high-profile case recently before the High Court involved major Australian media organisations, but the ruling will apply to far more than journalists and publications, affecting any entity or person with a Facebook page or similar.

The case stems from Dylan Voller, whose history and treatment at the Don Dale Youth Detention Centre, reported by the ABC, prompted a Royal Commission. Subsequent articles posted to social media by The Australian and The Sydney Morning Herald prompted comments by readers. Voller’s claim centred on being defamed by the comments under the posts.

Significantly, he did not attempt to sue the people that made the comments, but rather the media outlets who administered the Facebook pages, arguing they were responsible as “publishers” of the comments.

Both News Corp and Fairfax sought a ruling on the matter, and if they were liable for defamatory comments made by the public on their pages.

Facebook

In 2019 the NSW Supreme Court ruled for Voller, determining that the companies were in fact “publishers” of comments by third-party users. The companies appealed, and in 2020 the NSW Court of Appeals also ruled in Voller’s favour.

The publishers appealed again, to the highest authority in the land, the High Court, which has now ruled.

It upheld the lesser courts’ verdicts, that by “facilitating, encouraging and thereby assisting the posting of comments” by Facebook users, rendered the companies “publishers of those comments”.

The case involved Facebook, however the ruling has direct implications and applies equally to Instagram, Twitter and virtually any social media, including a company’s own website, if it facilitates comments.

The matter of whether or not the comments in question did indeed defame Voller has not yet been decided by the High Court, but this ruling now means if a business has a presence on social media, it is responsible for moderating the content made in response to posts.

It effectively gives potential plaintiffs a choice: track down a possibly anonymous troll who made the comment, or come after the business, which is undoubtedly easier, given its known identify and ability to pay.

ANU’s communications law expert Brett Walker told the ABC any organisation that administers a social media account could be liable — including, for example “businesses, sporting clubs and community groups”.

In good news for most Australian businesses, NSW, Victoria, Queensland, South Australia and the ACT passed new defamation laws in July that will help anyone threatened with a defamation lawsuit before it heads to court.

A plaintiff must now serve each defendant notice and wait at least 14 days before beginning a law suit.

The law provides opportunity to remove offending material quickly to limit potential harm.

It also specified a “serious harm threshold” whereby the plaintiff must prove they have or are likely to suffer serious harm to their reputation due the published material. This clause is expected to prevent trivial cases arising from social media banter that may not cause actual harm, thus offering some protection to social media page administrators.

Critics say the decision will put a lot of additional pressure on businesses to apply resources to moderating comments, and is likely to prompt many to tightly restrict comments or not allow them at all.

Facebook has only recently, in March, begun allowing comments by other users to be disabled on Facebook pages. (How to Turn Off Facebook comments)

This is also allowed on sister platform, Instagram, while Twitter allows administrators to restrict comments to only select people.


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