In an attempt to keep up with technological advancements, many areas of law have been developing at an extraordinary pace (compared to the pace we as lawyers have become accustomed to!).  Finance markets, blockchain, privacy, just to name a few.

Some areas of common law however are slower to adapt as they require the matter to be brought before a Court. While, perhaps, a little later than might have been expected, it is no surprise that the law of defamation has finally intersected with the world of social media.

Defamation has historically been defined as a communication from one person to another that harms the reputation of an identifiable third person.

Usually the person liable is the person making the defamatory statement. In a recent Supreme Court case however, that will have an impact on every business with a Facebook page, a judge has ruled that the owner of a Facebook page can be held liable for defamatory comments posted by others.

The case concerned Dylan Voller, whose treatment while in youth detention triggered a Royal Commission and significant media publicity.  Several news outlets published articles about Voller on their Facebook page. The articles attracted the generous attention of trolls and keyboard warriors who posted appalling defamatory content about Voller in the comments.

Voller subsequently brought an action for defamation against the news outlets, Fairfax Media, the Australian News Channel and Nationwide News, arguing that the media outlets were responsible not just for their articles, but for the content posted by third parties.

Voller argued that the administrators of the Facebook page had the capacity to filter comments and hide comments until they have been appropriately moderated, and that they were therefore publishers of the content, rather than innocent disseminators.    

The court agreed with Voller and found that the primary purpose of the Facebook pages was to promote and optimise readership. One of the ways in which this is achieved is by the number of people interacting with, and leaving comments, on the posts. In his judgment Rothman J, stated:

Each defendant was not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments.”

The case has broad implications, not just for the media, but for every business listed on Facebook!

In a world where Facebook algorithms dominate your marketing strategy, interactions and comments are essential marketing tools for your business page. 

However, as the ultimate controller, and therefore publisher, of your Facebook content, you should carefully consider the risk of defamation, and adopt processes to filter and moderate comments made by third parties.

You can read more about the story here.