Tuesday, 15 December 2020

Can My Business Be Sued for Someone Else’s Comments on Social Media?

Written by Maxine Betty

Reading Time: 3 minutes
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Introduction

The historically entrenched legal industry often struggles to keep up with the fast changing modern landscape. With the rise of social media, where everyone has a platform (with an audience) to express opinions, concerns or ideas – defamation law has been turned on its head. The common law plays a more active role in ensuring the law stays relevant. By drawing the line on where social media and defamation meet, the Voller Case (2019), aptly demonstrates this role of precedent. A previously contentious intersection now has some legal principles and guiding principles for us to follow. In this article, we’ll explain how recent litigation tells us that yes, you can be liable for someone else’s comments on social media.

The Voller Case

The Voller defamation case was heard by the NSW Supreme Court in 2019 and was later confirmed by the NSW Court of Appeal in 2020. The plaintiff, Daniel Voller, brought the lawsuit following degrading comments on social media. The comments regarded findings of his mistreatment in a Northern Territory detention centre. A royal commission in 2016 into his mistreatment, led to many media outlets reporting on and writing the story. These stories attracted much attention on social media, including debate in the comments sections of various media outlets posts. Subsequently, Voller brought claims against the media outlets for defamation instead of the individuals themselves – including prominent media outlets such as the Sydney Morning Herald and The Australian. 

So are you liable for someone’s comment on your social media post? 

Simply put, the Voller (2019) case tells us yes. 

The legal issue in question for the court was whether these media companies were liable for the publication of third party commentary on their posts. The court answered yes, under the reasoning that an action on the case for defamation does not require intent – a principle well established under common law. Rather, as stated by the appeal court, defamation is “an actionable wrong that lies in the publication to a reader, listener or observer of a matter that injures another person’s reputation”. As a result, despite not explicitly saying the comments, these media outlets are considered to have ‘published’ the content, and therefore are liable. Media companies have subsequently threatened to appeal the decision to the High Court of Australia. However, without the legislature intervening with statute to overturn the decision yet, they must abide by the ruling. 

So, what does this mean for your business? Under the reasoning given by the court, if your company is publishing content that may attract controversy, debate and defamatory statements it must be monitored – and deleted! Remember, an omission to act has just as much legal weight as an act itself.

The 4 things you can do to protect your business from a social media defamation suit

For the time being, the Voller case has legal precedent and must be followed. However, the jurisdiction of the precedent, that being if it extends to all companies, politicians, social media influencers, and users, is unclear. As a result, to be safe your business may need to (and should) adapt to this new landscape to ensure it is safe from a defamation suit. These 3 steps might help: 

1. Monitor, monitor, monitor

Monitoring your social media, especially on posts regarding more controversial topics, or on days inciting more controversial conversation, is integral. Hiring someone to do the role, or ensuring your employees are actively involved in checking the posts and deleting negative comments, is integral. Individuals are entitled to share their opinions on social media, however, you shouldn’t be held responsible.

2.Turn off the comments on your posts

Whilst this feature is not available on facebook, it may be a useful tool on other forms of social media such as Instagram, to ensure no hateful comments are shared. Thus, this may be useful on posts containing sensitive or controversial topics. 

3. Turn on notification for comments with particular phrases or words (that may be considered defamatory)

Monitoring features allows for the poster to be notified if certain phrases appear in the comments. For example, the ‘Keywords Alert’ function on Facebook. It could be turned on for:

  1. particular words,
  2. exclamation marks,
  3. capital letters,
  4. hateful images,
  5. emojis, or,
  6. controversial hashtags.

Whilst this won’t delete the comment it will alert you – allowing for a more efficient review process. As a result,

4. Use social media platforms that don’t allow for comments

Utilising social media platforms, like Twitter, that don’t allow for comments may be your best option. This could just be for controversial topics or days of the year. It is the most resource efficient option, however, may significantly affect your content engagement.

Conclusion

The legal landscape is changing, and must change more, to adapt with our fast-paced world. The Voller decision dictates one of many decisions to come on the contentious intersection between social media and defamation law. In an age where anyone can share their opinion, you do not want your company to be liable. As a result, ensuring your company is safe from a defamation suit is more important than ever.  

Make sure your company’s social media is free from a defamation claim by contacting one of our lawyers today.

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