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Social Media Operators Beware! High Court Confirms that Facebook Page Operators Are ‘Publishers’ of Third-Party Comments

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You may, or may not, have noticed a lot of changes on Facebook in 2021, but one of the most important impacts has come, not from Facebook itself, but from the High Court.

On 8 September 2021, the High Court handed down its judgment in appeal proceedings seeking to overturn the decision of the New South Wales Court of Appeal in Fairfax Media Publications v Voller [2020] NSWCA 102, which dismissed an appeal from the decision of Justice Rothman in the Supreme Court of New South Wales in Voller v Nationwide News Pty

The decision has significant implications for social media users in particular.

What you need to know

  • The High Court of Australia upheld the decision of the New South Wales Court of Appeal that owners and administrators of public Facebook pages can be held liable for defamatory comments made by third parties on their pages by a 5:2 majority.
  • The High Court found that succeeding on the defence of innocent dissemination does not mean that publication did not happen and that the defendant is not a publisher, it merely means the defendant avoids liability for publication.
  • The decision highlights the need for urgent legislative reform of the law of defamation as it pertains to digital platforms, such as Facebook, and the users of those platforms.

Implications – what does all this mean for social media users?

Those utilising social media (especially those with greater financial resources to meet any adverse judgment) need to be mindful of not only what content they ‘post’ or upload, but also the comments left by users or followers of their page in response.

A failure to prevent or moderate the publication of defamatory third-party comments in response to your ‘posts’ or uploads online may now result in exposure to liability in defamation.

Users who rely on social media engagement as part of their business model however will need to be proactive in managing their ‘defamation’ risks online – risks can be minimised by implementing various filter and/or ‘comment approval’ mechanisms to prevent or limit the publication of defamatory comments and by actively monitoring the comments left on your ‘posts’ or uploads for defamatory content.

What you can do to mitigate your risks

  • Owners and administrators of social media pages should limit third party comments to the appropriate extent possible, and otherwise monitor them, to try and mitigate any potential liability.

Samantha Litfin | Group Marketing Manager | 0407 464 303

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