When Your Comments Online Can Cost You

KEY TAKE-OUT:

Defamation laws are currently diversifying and changing with the consistent rise and popularity of social media. A recent High Court ruling exposes the moderators of online pages to a new legal risk. Users and moderators of social media platforms should be aware of the risks that can arise by posting their comments online, and when such comments can cost them.

In this blog, we examine a number of recent defamation law cases, particularly in relation to digital claims, where Plaintiff was successful and was awarded damages by the court.

On 8 September 2021, the High Court dismissed an appeal concerning whether a news organisation could be liable for defamatory comments posted by third party Facebook users on their news stories. The proceedings were initially commenced by an allegation that media companies were liable for defamation as the publishers of defamatory third-party comments.

What is Defamation?

Defamation is a legal action available where an individual, not-for-profit organisation or a small corporation (with less than 10 employees) claims a communication has been made about them which is false, and capable of harming their reputation. It primarily aims to balance the right of free speech with protecting a person’s reputation against harm.

A person who claims they have been defamed must prove they have suffered serious harm. It is important to note that just because something is considered offensive, does not mean it may cause serious harm to a person’s reputation. If you want to learn more about the elements of a defamation claim, potential defences, and remedies, we recommend you read our blog When Words Hurt – Can I Sue for Defamation?

The High Court Case

In 2016, Dylan Voller went on a Four Corners episode on the ABC which discussed juvenile detention in the Northern Territory. Facebook users posted comments about Voller on the Facebook pages of Fairfax Media outlets, which Voller claimed were defamatory. Instead of going after the individuals who made the comments directly, Voller sued the media outlets on the basis that as publishers of the third-party comments, they were liable for the defamation. At the time, it was not possible to prohibit comments on Facebook posts, although the media outlets eventually deleted the relevant comments.

The law prior to this case was that if, for example, defamatory comments were published on a physical noticeboard, then the publisher could be liable for the defamation as ‘continued publication’ if they do not remove the comments once they become aware of them. As some of these principles went back to the first half of the 20^th Century, the Voller case tested how these should apply to the modern world of social media, digital news and publication.

In 2019, the Supreme Court of NSW held that the media outlets were indeed liable as publishers, which in 2020 was affirmed by the NSW Court of Appeal. Fairfax Media then appealed the decision again to the High Court.

The appellants made submissions that to be a publisher, one must intend to communicate the matter complained of. Conversely, the respondent argued that any degree of participation in that process of communication, however minor, makes the participant a publisher.

A majority of the High Court ultimately held that ‘the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, participated in the communication of the defamatory matter to a third person’ and dismissed the appeal. The Court also rejected the appellant’s argument that to be a publisher, an outlet must know of the relevant defamatory matter and intend to convey it. The outlets were compared to operating an electronic bulletin board directly facilitating each comment made on the post, and that they were not passive in their role. This means that media outlets are considered the publishers of third-party comments on their Facebook pages, even if they are not aware the comments exist.

If I run a Facebook page – does this affect me?

The short answer is, yes. Even though the High Court ruling was focused on companies and media outlets, it is important to note that this ruling can seemingly apply to anyone in Australia. In particular, this decision will have a significant effect on how individuals and businesses will have to run their social media presence. If you run a Facebook page, there are two choices. The first is that you disable comments on all social media platforms, but this significantly limits the benefits of some platforms, as comments increase user engagement and can be central to their functionality, such as for advertising or promotional campaigns.

The second option involves considerably more oversight and monitoring of comments on all posts, which will take considerable time if posts generally attract hundreds or even thousands of comments. Filters could also be used to block certain words such as explicit language, but this may not cover all of the possible ways a user may defame somebody.

The implications for plaintiffs are also significant, as they can now go after Facebook pages, which are often run by businesses, as opposed to the people who actually made the comments for defamation. These businesses are more likely to be in a better financial position and are far easier to track down than a potentially anonymous Facebook user or ‘troll’.

Other Digital Defamation Cases

Notwithstanding the High Court’s recent judgement, there have been numerous defamation cases that have arisen from material posted online or sent via technological means. In fact, a 2018 study conducted by Derek Wilding from the Centre for Media Transition at the University of Technology Sydney found that approximately 51% of defamation actions in Australia between 2013 and 2017 were digital cases, meaning they stemmed from comments posted on social media platforms, including Facebook and Twitter, through emails and text messages, or on blogs and websites.

In Bolton v Stoltenberg [2018] NSWSC 1518, for example, the Supreme Court held that several Facebook posts were defamatory and ordered the first defendant to pay the plaintiff $120,000 in damages. The court also granted permanent injunctive relief to prevent repeat publication of the defamatory posts. A second defendant, who liked one of the defamatory posts and uploaded a comment encouraging others to like the posts, was also ordered to pay the plaintiff $10,000.

Also, in the case of Goldberg v Voigt [2020] NSWDC 174, the plaintiff was awarded $35,000 in damages plus costs after the court found he was defamed by a single Facebook post on a community group page.

In another case, Bertwistle v Conquest [2015] QDC 133, the defendant sent text messages to her sister saying the plaintiff had been having consensual and non-consensual sex with his sisters. The plaintiff gave evidence in court about how he had been affected by this claim about him, which included that he no longer received invitations to family functions and gatherings and that the relationship he had with his family had been adversely affected. The court held that the defendant was liable for her comments, and though sending a text wouldn’t ordinarily constitute ‘publication’ within the meaning of defamation law, the grapevine effect of the text’s content spread beyond the initial communication did. The plaintiff was awarded $100,000 in damages. Although this case is of Queensland jurisdiction, it is illuminating as to how a court can interpret the meaning of ‘publication’.

With the rise of new-age technology and emerging social media platforms and internet sites, it is important that defamation law evolve to protect potentially injured persons. A law reform process is currently underway to consider changes to existing laws to address the issue of liability of persons who control digital platforms when users publish defamatory content on those platforms. There is no indication, however, as to if, or when, those reforms will take place.

It will be interesting to see how this decision affects the way in which individuals and businesses use and monitor their social media platforms. For now, if you operate a Facebook page for yourself or your business and wish to discuss your potential liability and the mechanisms you can put into place to limit it, do not hesitate to contact our team at Coutts who would be happy to assist.

Otherwise, If you think you have a claim in defamation, or want to defend a claim, it is important to seek independent legal advice relevant to your facts and circumstances. At Coutts, we have lawyers experienced in personal injury matters that can assist you.