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Your Facebook, Your Responsibility

A recent decision of the Supreme Court of New South Wales[1], has found that media companies could be liable for defamatory comments made by readers, concerning news stories posted on corporate Facebook pages.

The plaintiff, Dylan Voller, is a former youth detainee whose treatment in custody triggered a Royal Commission into the Protection and Detention of Children in the Northern Territory. Mr Voller commenced proceedings for defamation against a number of media companies, based on comments made by members of the public on 10 Facebook posts made on the companies’ public Facebook pages in 2016 and 2017. Mr Voller alleged the comments contained false and defamatory imputations. Mr Voller argued that the media companies were responsible for the comments made by members of the public on the Facebook posts.

To be liable for defamation, you must publish something that is defamatory. It is well recognised that the publisher is not necessarily the author of the defamatory content. The question considered by the Court in this case was whether Mr Voller had established that the media companies had ‘published’ the comments.  

Justice Rothman held that the media companies were primary publishers of the comments by members of the public on the news stories posted on their Facebook pages. He found that media companies have a commercial imperative for posting on Facebook, that being to increase reader engagement thereby allowing them to charge more for advertising; and as such they assumed the risk of potentially defamatory comments.

He found that as media companies have the ability to review comments that might be defamatory before they are made visible to the public, they have control over the comments that are posted, and cannot escape the consequences of their actions by turning a blind eye to it.

Justice Rothman considered that as the articles posted by the media companies in this case related to an emotive issue that could trigger strong positions on both sides, including unreasonable positions, the media companies were aware that comments were likely to include defamatory material.

This decision highlights that businesses that operate public social media pages, should ensure they have adequate measures in place to moderate and review comments on their posts by third parties, particularly if posts are on emotive or controversial issues.

[1] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

Liability limited by a scheme approved under the Professional Standard Legislation

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