Many businesses rely on users interacting with their social media posts. But where a comment made by a user on a business page is defamatory, did you know that your business could be liable for significant damages not the user who posted it?

On 1 June 2020, the New South Wales Court of Appeal decided that the owner of a Facebook page that participates, and is instrumental, in bringing about the publication of defamatory matter by third parties is potentially liable for the damages that flow. This is so even if others participated in that publication to different degrees.

MBA Lawyers litigation lawyer Brendan Pitman warns that there is now a real risk that businesses might be sued for comments which they did not publish or have any control over.

“If you run a business social media page, your risk of liability for defamation has increased, and you must consider ways to reduce that risk while maintaining the benefits that come from a strong online presence,” he says.

We’ve summarised the case for you for those interested in more detail on the matter.

Background facts

In 2017 a youth detainee, Dylan Voller, began proceedings in the Supreme Court of NSW against three media companies – Nationwide New Pty Ltd, Fairfax Media Publications Pty Ltd, and Australian News Channel Pty Ltd – claiming  damages for defamation based on the content of third party posts on Facebook pages maintained by these media companies.

The comments on Facebook were made after news articles were published about Voller’s mistreatment in a youth detention centre, which led to a 2016 royal commission.

In 2019 the Supreme Court ruled that the media companies could be considered ‘first or primary publishers’ of the third-party comments. The media companies then proceeded to the Court of Appeal.

The Appeal

The media companies argued that to be ‘publishers’ they must have been instrumental to, or an active participant in, the communication. The submission was unanimously rejected. The court held that:

A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees. In this case, the applicants maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally and were therefore publishers of the comments.

What this means for owners of Facebook Pages

Brendan says the decision essentially creates a precedent for anyone who administers a Facebook or other social media page to which third parties can publish material.

“Businesses should make every effort to monitor comments being published publicly to protect themselves and make every effort to remove potentially defaming posts,” he says.

“Social media from a business perspective needs to be taken seriously, and not adopted as a post and forget type mentality. “We welcome you to contact our social media litigation team on 07 5539 9688 if you would like further advice from our team.”