Businesses could be responsible for comments posted on their social media

Businesses could be responsible for comments posted on their social media

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businesses could be responsible for comments posted on their social media

The High Court has confirmed that the administrators of public social media pages are ‘publishers’ of comments posted by third parties and members of the public on their page, for the purposes of defamation law.

Any business that hosts a public social media page, or has a comments function on their own website, should review its social media engagement processes and monitor and moderate comments to avoid the risk of liability for defamation.

Key points

  • The news outlets in this case were found to be ‘publishers’ of user comments because, by hosting a public Facebook page and posting material which could be commented on, they facilitated and encouraged the communication.
  • This decision affects any business operating a public social media page or forum/website with a public comments function, it is relevant to businesses other than media outlets, and to content posted on platforms other than Facebook.
  • It is no excuse that moderating every single comment would significantly increase compliance costs. Social media is an integral operational and promotional tool for many businesses, but by choosing to host and take the ‘commercial benefit’ of a public social media site, the business bears the legal consequences.
  • Businesses should consider their options for hiding or moderating comments and content, Facebook recently introduced the ability to turn off the comment function.
  • The High Court did not address the substantive issues in this case, so the news outlets may still be able to rely on the defence of innocent dissemination. While the door was left open to defences, this decision confirms that the administrator of a page can be sued for defamatory comments posted to the page by a third party.
  • This issue is currently under review by state and territory legislators, so the position may be altered by statute in the future.

Reducing the risk through recent changes to social media and the law

At the time the comments in this case were published, Facebook did not allow page administrators to turn off the comment function. Facebook has since changed this and given administrators more control. Instagram and Twitter also have comment restriction functions. Businesses may now look to use these functions more frequently. Prospective plaintiffs are more likely to pursue a defamation suit against a page administrator than individual commenters, as the administrator will usually be a business with ‘deeper pockets’.

Reforms to defamation legislation in most states and territories may also reduce the risk of page administrators being sued for third-party comments. The Model Defamation Amendment Provisions, which were the result of Stage 1 of the reform process, were introduced on 1 July 2021 in NSW, QLD, SA, Victoria and the ACT (with the other states to follow soon). The changes introduced a serious harm threshold, meaning a plaintiff must establish they have suffered, or are likely to suffer, serious harm to their reputation as a result of a defamatory statement. Additionally, a prospective plaintiff must now send a ‘concerns notice’ to the publisher and wait at least two weeks before they are allowed to commence proceedings, giving the publisher an opportunity to make an offer of amends and settle the claim.

Stage 2 of the reform process, currently underway, is looking at liability for the publication of third-party content. The Discussion Paper for Stage 2 referred to the two prior Voller decisions, and sought submissions on the status and liability of forum administrators and content hosts in scenarios such as this. It may be the case that the legislation is amended to alter the position taken in this High Court decision, so affected businesses should follow the reform process closely.

Actions you should take

Businesses need to be vigilant, and implement processes for monitoring and moderating comments on their social media, and even though increased monitoring of social media postings will undoubtedly increase compliance costs, this cost must be weighed against the risk of liability for defamation.

Businesses should take the following action:

  • Consider the tools that social media platforms make available for hiding or moderating comments on posts or content uploaded to public pages.
  • Make sure that you monitor comments third parties post to your company social media pages.
  • Implement processes for promptly removing comments, or other content, from your company social media pages where they breach the platform rules or contain potentially defamatory material.

The role of insurance

Businesses face many risks when it comes to social media, including defamation and reputation damage. But there are mitigation strategies they can put in place to protect against these threats. Insurance also has a role to play, but it is important to understand how cover works in relation to social media risks, because the protection insurance provides has limitations.

If you have been accused of defamation as a result of comments you have made on social media in your capacity working for a business, cover may be available within public and product liability insurance, professional indemnity insurance, as well as certain other policies.

But if you have made defamatory comments in a personal capacity, it’s unlikely business cover will provide any protection.

Insurance may also respond if trolls or keyboard warriors have attacked you on social media in your capacity working for or running a business. Again, insurance policies such as public and product liability insurance, professional indemnity insurance, as well as certain other policies may provide cover for the cost of legally defending yourself against any defamatory comments made against you.

However, cyber policies will typically not respond when a business or the people working in it are attacked on social media as, generally speaking, there needs to have been some kind of attack on your computer system for a cyber policy to respond.

Management liability policies, if they include cover for public relations costs, may help pay for the cost of public relations activities in the event people in the business have been defamed and work needs to take place to restore the affected parties’ reputation.

There is considerable variation between policies in terms of the extent of the public relations expenses cover they provide. For instance, while policies typically won’t provide cover for threats such as someone trolling your business, it may provide cover for the loss of a major customer contract. For this to happen, the trolling or event would likely need to be defined as a crisis event.

Contact HDL to discuss how this may effect you

While laws are tightening, it’s essential to ensure moderators and administrators understand the rules around defamation to reduce the risk of this being an issue for the business when it comes to its social media profiles.

Contact HDL for further information.

The information provided in this article is of a general nature only and has been prepared without taking into account your individual objectives, financial situation or needs. If you require advice that is tailored to your specific business or individual circumstances, please contact HDL.

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